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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Fitzgerald v. Ecovert South Ltd [2001] UKEAT 1043_00_0902 (9 February 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1043_00_0902.html Cite as: [2001] UKEAT 1043__902, [2001] UKEAT 1043_00_0902

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APPEARANCES

 

	No appearance or representation by or on behalf of the Appellant


 


JUDGE PETER CLARK

1. This is an appeal by the Applicant before the Brighton Employment Tribunal sitting on 29 July 1999, Mr Fitzgerald, against that Tribunal's decision dismissing his complaint of unfair dismissal brought against his former employer, the Respondents Ecovert South Ltd. Full extended reasons for that decision were promulgated on 5 October 1999.
2. The Respondents operated a three stage capability procedure, designed to encourage staff to improve their attendance record, coupled with the ultimate sanction of dismissal if they failed to do so. The Applicant was employed as a dustman from 3 June 1989 until his dismissal effective on 4 March 1999.
3. The Respondents invoked stage 1 of the procedure in May 1996. They then proceeded through stage 2 and finally to stage 3. The detail was contained in a bundle of documents produced to the Tribunal, proved by their witnesses and oral evidence and set out in the Tribunal's reasons. We need not repeat it here.
4. Ultimately the Appellant was dismissed following the final stage 3 meeting held on 4 March 1999. His appeal against that decision was dismissed following an appeal hearing held on 25 March 1999.
5. Having reviewed the history the Tribunal concluded:

(1) that the reason for dismissal was capability, a potentially fair reason;

(2) the dismissal was fair, applying the statutory test under section 98(4) of the Employment Rights Act 1996.

6. The Appellant had a history of absenteeism. The Respondents had given him every opportunity to improve. Their adherence to their own procedure was exemplary. The Appellant had every opportunity to put his case at numerous meetings, with the assistance of trade union representation. The Tribunal accepted that there comes a time when a reasonable employer is entitled to say enough is enough. That point had been passed on the facts of this case. The Respondent had taken steps to understand the Appellant's medical condition, caused by an unhappy event in his domestic life. They had treated him with care and compassion despite the disruption which his absences had caused to the business.
7. The appeal was listed for a preliminary hearing before this Division today at 10.30 am. There has been no appearance by the Appellant, and no explanation given for his absence. Attempts to telephone him have met with no success. In these circumstances we have proceeded to consider the case on the papers.
8. Appeals to this Appeal Tribunal are limited to correcting errors of law. We have considered the original Grounds of Appeal served on 16 August 1999, and the further and better particulars of the Grounds of Appeal subsequently lodged by the Appellant.
9. Having done so we can see no scintilla of a point of law advanced. Having considered the Tribunal's extended reasons, it is difficult to imagine what possible point of law could be argued in this case. There are, in our view, no grounds for interfering with the Tribunal's decision as a matter of law, and consequently this appeal must be dismissed.