Appeal No. EAT/313/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 October 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MR A C BLYGHTON
MISS C HOLROYD

MR S DUMBLETON	APPELLANT

FRANCES CLARK LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DUMBLETON
(Father of the Appellant)	
For the Respondents	MR N OSWIN
(Regional Controller on behalf of the Respondents)	

	MRS JUSTICE SMITH:   This is an appeal from the decision of an Industrial Tribunal sitting at Stratford on 30th January 1996. The Industrial Tribunal dismissed the appellant’s application for the payment of wages under the Wages Act 1986. 

	For a short time in May 1995, the appellant who was at that time 18 years old, worked for the respondents as a security guard. He was to receive 5 days training at the outset, and  then would be assigned to work in various shops and stores throughout the region. 

	Before his employment began he signed a document which related to the payment of his wages during the training period. It is headed “Probation and Bank Details”. The first paragraph reads as follows:

“I understand that wages in respect of my training period will not be paid until I have satisfactorily completed my three months probation period with Frances Clarke Ltd, and I accept this condition. If I decide to leave the Company during this time those wages will be forfeited. Additionally, if full notice is not worked wages will be deducted to cover the costs of work not performed.”

The remainder of the document relates to particulars of the appellant’s bank account so that his wages and any expenses could be paid directly into his account.

	The appellant completed five days of training between 23rd and 27th May 1995. On 28th May he worked at Islington and was paid for that work. In respect of 29th May, there was a dispute before the tribunal as to whether the appellant had attended for work as directed at a Woolworth’s store in Romford. The Industrial Tribunal found in the respondents’ favour on that point and no appeal arises in respect of that.

	On 30th May, the appellant took a rest day. He was therefore at home. It was his contention that he received a telephone call from the respondents in which he was instructed to attend at a store at the Elephant & Castle the following day. His claim was that he told the respondents’ representative over the telephone that he could not afford the cost of travelling to the Elephant & Castle and that he asked for a job nearer home. He alleged that he had been told that if he was not prepared to attend at the Elephant & Castle he would be dismissed.

	The claim as advanced to the tribunal was that as he had not decided to leave the company, his wages for the training period should not be forfeited under the contractual provision to which we have already referred.

	At the tribunal hearing the appellant himself was not present to give evidence. He had by that time begun a college course in Devon. His father represented him and gave evidence of the matters of which he knew. The father said that he had been present at the time of the telephone conversation on 30th May 1995. He said that he had heard both sides of that conversation because there had been a monitor attached to the telephone which he had switched on. He said that he could not identify the speaker at the other end, but if his evidence was true and accepted by the tribunal, he was in a position to give as good an account of that conversation as his son would have been able to give.

	The respondents’ case was that the appellant had not been dismissed. Enquiries had been made at the relevant office, and nobody could recall dismissing him. Nobody had any authority to dismiss him. One woman employee had been located who told her employers that she recalled speaking to the appellant on 30th May 1995, but she had no recollection of dismissing him. 

	The Industrial Tribunal accepted the respondents’ evidence. At paragraph 9 of the decision they say this:

“9	As we have observed the Applicant was not before us. We reminded Mr Dumbleton that the burden of proof in this case lay with his son, the Applicant. We have not dismissed the Applicant’s claim without care and we have taken into account the evidence his father gave for him and also, we have considered the content of the Applicant’s Originating Application and the documentary evidence before us. Nevertheless, we are entirely satisfied that there is no evidence before us today to lead us to the view, on the balance of probabilities, that the Applicant was dismissed by the Respondent. Accordingly, we are guided by the evidence of Mr Oswin as to the conditions of the Applicant’s employment and specifically in regard to the explanation given to the Applicant at interview that wages in regard to the training period would not be paid until the Applicant had satisfactorily completed a three month probation period. That evidence is confirmed for us by the document put in by the Respondent dated 25 May to which we have already referred. Accordingly, we do not take the view the Applicant has any contractual entitlement for unpaid wages during his training days.”

	It does appear from the decision that both parties had accepted that on a proper construction of the contractual term in the document to which we have referred, the wages for the training period would be forfeited only if the appellant had decided to leave the company. If he were to have been dismissed by the respondents he would be entitled to receive wages for the training days. Thus the finding of fact that the appellant was not dismissed was crucial. The tribunal having made that finding went on immediately to say that the appellant was not contractually entitled to the wages for the training days.

	When this matter came before the Employment Appeal Tribunal on a preliminary hearing, Counsel appearing under the voluntary scheme, persuaded the Appeal Tribunal that an arguable point of law arose in that the tribunal had asked themselves the wrong question. They had asked themselves whether the appellant had been dismissed, but had not asked themselves whether the appellant had decided to leave the company or decided to give up his employment.

	It is true to say that the tribunal did not make a specific finding that the appellant decided to give up his job. However, on further consideration, we have concluded that the point is without merit. If the appellant was not dismissed, the inference can clearly be drawn in the circumstances that he must have given up his employment of his own accord, or in other words, he must have decided to leave the company. It was not suggested either to us or to the Industrial Tribunal that there was any third possibility ever advanced, besides dismissal by the respondents on the one hand, and the voluntary giving up of the employment on the other. Thus we conclude that having found that there was no dismissal by the respondents, the Industrial Tribunal were entitled to conclude as they plainly did, that the appellant gave up his employment voluntarily and had in effect decided to leave the company.

	Today Mr Dumbleton, the appellant’s father, has presented the appeal on a different basis from that which was presented at the preliminary hearing. He has complained, in effect, that the case was lost because his son was not available to give evidence. He claims that he and the appellant had not realised that it was possible to seek an adjournment of the hearing on the ground that his son would be unable to attend. Moreover, he has told us that he did not realise that it might be possible for the hearing to be re-opened if a review of the tribunal’s decision were granted.

	We have considered these points, because although they were not raised on the preliminary hearing, reference was made to the question of the availability of an adjournment in paragraph 9 of the Notice of Appeal. But as to these arguments, we say this. First, we do not accept the premise that on the crucial issue of whether the appellant was dismissed, the result before the tribunal would have been different if the appellant had been heard. The father had claimed to hear the whole of the relevant conversation. However, we do accept that the result might have different if the appellant had given evidence.

	Accordingly we sent for copies of the documents which the appellant and his father would have received, first with the Notice of Hearing, and second, with the decision. The Notice of Hearing which is usually sent about five weeks in advance of the proposed hearing date, says this:

“You are responsible to ensure that all the witnesses you may wish to call can attend on the hearing date. Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons, will be entertained if it is received more than 14 days after the date of this Notice. Any such application must be in writing and state the full grounds.”

We consider that that advice is quite clear, and the appellant could not have been under any misapprehension. He could have applied for an adjournment at any time within 14 days after receipt of the notice. Mr Dumbleton has told us that on receipt of this notice, he wrote to the tribunal explaining that his son was unable to attend, and was assured that it would be in order for him to represent his son. That advice cannot be criticised. It was in order for him to represent his son; he did so and gave evidence on his behalf. We cannot accept that the appellant has been in any way misled as to his rights, or any way disadvantaged by the advice and guidance that he has been given.

	We have also considered the guidance notes attached to the Industrial Tribunal’s decision. This plainly sets out the two ways in which a decision of the tribunal may be challenged by a party who is dissatisfied. There is guidance as to the seeking of a review and the lodging of an appeal. The grounds on which a review may be granted are listed. One of the grounds is that the decision was made in the absence of a party. Mr Dumbleton has told us he did not think that that applied to him because he represented his son. It seems to us he cannot complain that the guidance is unclear. If he was in doubt he should either have sought legal advice or telephoned the Industrial Tribunal office for clarification. Our experience is that the tribunal staff are always willing to give such assistance.

	We cannot accept that the appellant or his father were in ignorance of the options that were open to them. They chose to appeal this decision rather than to seek a review. In the event, our conclusion is that no point of law arises on this appeal. We have considered all the matters which have been raised before us with care, and we have reached the conclusion that there is no merit in any of the arguments. Accordingly, this appeal must be dismissed.