Appeal No. EAT/872/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 March 2001

Before
MR RECORDER BURKE QC
MR D NORMAN
MISS S M WILSON CBE

CBC COMPUTERS LTD	APPELLANTS

MR K BOUAISSI	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellants	Mr S Choudhary
(Representative)

MR RECORDER BURKE QC

1	In a Decision, accompanied by Extended Reasons and promulgated on 8 February 2000, the Employment Tribunal at London North, chaired by Mrs Prevezer sitting alone, dismissed the Applicant’s claim for unfair dismissal because he had not been employed for the qualifying period, but awarded him £576.92 for wages due and unpaid.

2	The Respondents to the Applicant’s claim, a firm called CBC Computers, which appears to be owned and run by a Mr M Chauhdry, did not appear at the hearing.  In a letter to the Tribunal of 18 February 2000, Mr S Choudhary who works for Mr M Chauhdry in some capacity which is undefined (and we say that in no critical spirit) informed the Tribunal that he had been present on the day of the hearing but had not been told that the hearing was starting, and only learned about it when the hearing had reached its end.  That letter was correctly treated by the Tribunal as an application for a review; the application was granted.  Thus, on 15 June 2000, the Tribunal, in effect, started all over again, heard evidence from the Applicant, Mr Bouaissi, and evidence on behalf of the Respondents.  Again, Mr M Chauhdry did not appear.  The evidence of and representation of the firm was in the hands of Mr S Choudhary, who has also appeared before us on behalf of the firm today.  

3	Mr Bouaissi’s case was that he had been sent by the Job Centre to fill a vacancy for a computer engineer at a salary of £15,000 per annum; that he was interviewed by Mr M Chauhdry, who gave him the job at that salary, and that during the two weeks which followed, in which he worked for the firm, various things went wrong.  One of the things that went wrong was that he was not paid any money.  As a result, on the Friday evening of the second week, he refused to do any work, as he was asked to do on the Saturday, and as a result, was dismissed by Mr M Chauhdry,.  The firm’s case, as set out in their IT3, was that Mr Bouaissi was never employed at all, but was taken on, when it turned out at interview that he did not know anything about computers, without any remuneration at all, so that he could learn about computers, or on some kind of a trial basis.  Mr M Chauhdry obviously believed that someone working on a trial basis, so as to learn about the job, even for no money, was not employed.

4	Part of Mr Bouaissi’s case was that while the Job Centre’s written particulars had specified a salary of £15,000 per annum, Mr M Chauhdry, when he dismissed Mr Bouaissi, refused to give him the Job Centre letter back and later persuaded the Job Centre to change the particulars so that instead of providing a salary in money terms, it said “negotiable”.  

5	Mr S Choudhary, who attended the review hearing and was present at the Tribunal for the first hearing, but was not called into the Tribunal room, for reasons which it is now not necessary to investigate, was according to the findings of the Tribunal at the review hearing, not present at the interview when Mr M Chauhdry “took Mr Bouaissi on” - to use a neutral expression.  

6	Therefore, the Tribunal had nobody before them, other than Mr Bouaissi, who was present at that interview, and could speak directly of the terms on which Mr Bouaissi was present at the employer’s premises, again, to use a neutral expression, for the next two weeks.  The Tribunal accepted Mr Bouaissi’s evidence, found that the salary of £15,000 per annum had been agreed, as Mr Bouaissi said, and was not merely on the basis that it was negotiable, as Mr S Choudhary put to the Tribunal.  On that basis the Tribunal, on the review hearing, came to the same conclusion as that which it had reached at the original hearing, namely that the claim in respect of the wages due was established, and awarded an appropriate sum as money due.

7	In its Notice of Appeal to this Appeal Tribunal, the firm said that it was appealing from the Decision that because Mr Chauhdry was not present at the hearing, when he had interviewed the claimant, the firm had failed in its resistance to Mr Bouaissi’s claim.  It was not suggested in the Notice of Appeal that Mr S Choudhary had, in fact, taken part in any interview of Mr Bouaissi, and there is no suggestion in the Decision that he had put such information before the Tribunal.  Today he has told us that he was involved in some interview with Mr Bouaissi, but that Mr M Chauhdry, whose firm this was, had later been involved in a subsequent interview.  We, of course, cannot take new evidence in this Appeal Tribunal, although we understand that Mr Chauhdry was merely making submissions to us, and cannot be expected to understand the line between submissions and evidence; and what we say is not intended as any criticism of him.  But there is no basis from what he has said on which the Decision of the Tribunal that it was the other Mr Choudhary who had conducted the relevant interview at which terms between Mr Bouaissi and the firm were agreed, could arguably be criticised at this preliminary hearing of the firm’s appeal.  

8	The Notice of Appeal suggests that the Tribunal at the review hearing rubber-stamped the original Decision, which was made by the same Chairman but sitting alone.  There is no reason to suppose that the Tribunal did not consider the evidence that it had before it, and on the basis that Mr Bouaissi was able to give evidence of the vital interview, whether there was another one or not, between himself and Mr M Chauhdry and that Mr M Chauhdry was not present to give any rival evidence at the review hearing, it is not at all surprising, and certainly cannot be the subject of criticism in this Appeal Tribunal, that the Tribunal decided to accept Mr Bouaissi’s evidence.  The firm had its chance to put forward its case at the review; if they did not do so, they cannot later complain to this Appeal Tribunal, which has the power only to entertain appeals where an error of law is alleged.  

9	When we look at the so-called facts which the firm says were not presented, we can discover a separate point, namely that the Tribunal refused to accept in evidence a letter which was said to be either the original or a copy of the original job description from the Job Centre, which, according to the firm, confirmed that no salary was specified.  That complaint is, however, without arguable foundation.  The letter appears to be, in fact, a set of particulars from the Job Centre, stating that an application for the job was to be made by 28 September 1999; it specifies that the wage was negotiable, but it bears the date, at the top of 18 October 1999. 18 October 1999 is, of course, after the dismissal had occurred; and the Tribunal were entitled to reject that letter in those circumstances, if that is, as it appears to be, the letter to which reference was made in the Notice of Appeal. 

10	Today, Mr S Choudhary has put before us another letter, which is a job description sent or supplied by the firm to the Job Centre, setting out that it wanted help in relation to two positions, one of them being the computer engineer’s position for which Mr Bouaissi applied.  The point that is made is that no salary is specified in that document.  If that is the document which the Tribunal refused to accept, again, we do not see any basis on which it can be criticised for doing so.  The letter is undated, it does not specify that the salary was to be negotiable, it specifies no salary at all.  

11	It is highly unlikely that the firm wanted the Job Centre to advertise a job without any reference in any form to remuneration; it is almost inevitable, it seems to us, that there would have had to have been some contact between the Job Centre and the firm to clarify what was going to be the salary, even if it was only to be specified as negotiable; and in any event, Mr Bouaissi’s evidence that whatever the document said, he and Mr M Chauhdry had agreed that the salary would be £15,000 per annum, was the evidence which the Tribunal accepted as it was entitled to do.  

12	That being so, we can see no arguable error on the part of the Tribunal; whether matters would have been different if the person who had actually handled the interview and handled Mr Bouaissi throughout, namely Mr M Chauhdry, had attended to give evidence, either on the first or second occasion, we cannot say.  The fact is that he did not and the Tribunal was entitled to proceed on the evidence that it did have and to accept the evidence of Mr Bouaissi as it did, and this Appeal Tribunal cannot see any basis on which those findings of fact could arguably be the subject of criticism.  Accordingly, this appeal is dismissed.