Appeal No.	 EAT/0310/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 November 2001

Before
HIS HONOUR JUDGE J R REID QC
MR B V FITZGERALD
SIR GAVIN LAIRD CBE

MR FARIBORZ FALLAHI	APPELLANT

KENTUCKY FRIED CHICKEN (GB) LIMITED 
t/a TRICON RESTAURANTS INTERNATIONAL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	MR IRVINE MACCABE
(of Counsel)
Messrs Ellis & Fairbairn
Solicitors
26 Old Brompton Road
South Kensington
London
SW7 3DL	

HIS HONOUR JUDGE J R REID QC

1	This is a Preliminary Hearing of an appeal by Mr Fallahi against a decision of an Employment Tribunal at London Central.  That decision was sent to the parties and entered in the register on 16 January 2001.  By the decision the Tribunal held that Mr Fallahi had been unfairly dismissed but his conduct and actions were such that it was just and equitable for both his basic and compensatory awards to be reduced by 100%.

2	The facts very briefly are that Mr Fallahi was a restaurant manager with the Respondent’s, Kentucky Fried Chicken.  He took some takings from the particular restaurant at which he was the manager to put them in the bank.  He was robbed on the way to the bank.  He was dismissed summarily because of his failure to comply with the company’s regulations about cash handling and banking.  

3	The basis of the appeal is that the Tribunal’s finding that he was 100% to blame and entitled to no compensation was wrong because it was largely affected by a finding by the Tribunal that he had left the premises with the money at about 15:30 on the relevant afternoon to go to the bank 100 yards away but that he had only telephoned the police complaining of the robbery at 17:15.  This was a point to which they returned at a number of points during their decision.  What is said on behalf of Mr Fallahi is that the finding of fact that he had left at 15:30 was wholly unsupported by the evidence; that such evidence as there was, all indicated that he had left some time round about 16:30 in the afternoon; that it followed from that that the suggestion that there was a very large period of time between his leaving the restaurant and calling the police, unaccounted for, was a false finding which was not justified on the evidence and was plainly wrong; and that, when one looks at the way in which the Tribunal harked on about this point, it was clear that the Tribunal, despite their disavowals, were inferring that Mr Fallahi was himself the thief and had not been subject to any robbery.  I suggested to counsel for Mr Fallahi in the course of his argument, that it was an instance, on his submission, of the Tribunal being willing to wound but afraid to strike, and he accepted that suggestion.

4	There is now further evidence available which supports the evidence which was in fact before the Tribunal as to the time at which Mr Fallahi left the restaurant.  That comprises partly of a closed circuit television recording apparently showing him leaving round about 16:30, and partly of a punch card showing him going out at about the same time.  Neither of those matters was before the Tribunal below and Mr Fallahi wishes to adduce those matters on the appeal.

5	It seems to us that there is clearly an issue as to whether it was appropriate to make 100% deduction as the Tribunal did and whether, if the Tribunal had made a correct finding of fact as to the length of time between Mr Fallahi’s leaving the restaurant and his telephoning the police, they would have come to the same conclusion.  There is also, it seems to us, an issue which needs to be resolved (insofar as the content of the additional evidence is not agreed to be put before the appeal Tribunal) as to the extent to which that evidence should be admitted.  That is not something which can be dealt with on an Ex Parte Preliminary Hearing.

6	What we propose to do therefore, is to direct that this matter goes to a Full Hearing and to direct that as a preliminary point at that Full Hearing the issue should be determined whether any of the proposed additional evidence should be admitted or not.  We put it in that way because it appears to us likely that the additional evidence, if it is to be admitted, will take the form simply of the showing of a short passage of the CCTV recording, and the production of the relevant punch cards, perhaps with a little written explanation, but it should not comprise anything much in the way of oral evidence.  

7	If either side thinks that it is going to be necessary to call oral evidence then it would be desirable to have the issue as to the admissibility of that evidence on the Appeal Hearing determined at a Preliminary Hearing earlier than the proposed Appeal Hearing because it would be most unfortunate to have the proposed witnesses having to turn up to listen to legal argument as to admissibility and then if the evidence is ruled inadmissible for them to be sent away again.  Therefore, if such a thing is likely to happen it will be necessary for the parties to make an application for the preliminary point to be dealt with at an earlier date than the Full Hearing of the appeal.

8	It should be made entirely clear that the allowing of this matter to go to a Full Hearing does not give any indication of our views as to the merits or otherwise of the appeal.  Even without the timing point there were clearly matters for concern about Mr Fallahi’s account of what occurred that afternoon which will no doubt have to be the subject of further consideration either in the Employment Appeal Tribunal, or in the Employment Tribunal if the appeal succeeds.  But it does seem to us that there is reason for this appeal to go to a Full Hearing because it seem to us that it is at least arguable that, but for what are asserted to be demonstrable errors of fact based on no evidence at all, the Tribunal might have reached a decision which was to some extent different.  We make it clear that we are giving no indication at all as to what the result of the appeal is likely to be or what the consequences will be.

Given that the Appellant asserts that there was no evidence to support the time which the Tribunal held that Mr Fallahi left the restaurant namely, 15:30, it seems to us that the appropriate course is for the Chairman to be invited to comment as to whether he accepts that there was no evidence of the time of Mr Fallahi having left the restaurant at 15:30, and to provide to the Employment Appeal Tribunal any part of his notes of evidence which he regards it as appropriate to produce if he does not agree with that contention.  The matter will therefore go to a Full Hearing on those terms.  Category C.  Time estimate one day, notify if shorter.