Appeal No. EAT/0875/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 June 2003

Before
THE HONOURABLE MR JUSTICE WALL
MR P A L PARKER CBE
MR H SINGH

MR A CUKIC	APPELLANT

VORDULA LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

(Revised)
________________________________________________________________________________

	APPEARANCES

For the Appellant	MR A CUKIC
THE APPELLANT
IN PERSON	
For the Respondent	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF 
THE RESPONDENT	

MR JUSTICE WALL:

1.	This is the full hearing of a part of Mr Cukic’s appeal against the decision of the Employment Tribunal held at London South on 17 May 2002.  The unanimous decision of the Tribunal was that Mr Cukic had not been unfairly dismissed and that his claims for a redundancy payment failed. Both complaints were, accordingly, dismissed.

2.	Mr Cukic was 36 at the date of the relevant events. His case was that he had been continuously employed by the respondent for many years - effectively, since he was a teenager. His case before the Tribunal was that, as a consequence of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (“TUPE”), he had an extensive period of continuous employment with the respondent, by whom he was employed as a chef.  The respondent’s case was that there had been a break in that employment when he had been made redundant and, subsequently, re-employed.  That issue, of course, went very clearly to the heart of the question of Mr Cukic’s redundancy payment.

3.	The Tribunal, having heard the evidence, decided that there had been such a break in employment; that TUPE did not apply and that, as a consequence, that Mr Cukic’s claim to a redundancy payment related only to the three years during which he had been employed in his current employment, prior to being made redundant.  The Tribunal also found that the redundancy was genuine and that his dismissal, consequent upon the redundancy, had been fair.

4.	Mr Cukic challenged all those matters before the Employment Appeal Tribunal but, at a preliminary hearing in a constitution chaired by His Honour Judge McMullen, QC, the EAT came to the conclusion that there was not an arguable point of law in relation to the substantive aspects of the claim which I have just described.  This Tribunal did find, however, that the calculation of the sums owed to Mr Cukic looked defective and was, arguably, defective. It accordingly permitted Mr Cukic to proceed to a full hearing of his appeal on the basis of those calculations, namely, the redundancy payments and pay in lieu of notice.

5.	We have explained to Mr Cukic that it is simply not open to us to go behind the order of our predecessor’s constitution, chaired by His Honour Judge McMullen.  That Tribunal has dismissed those parts of Mr Cukic’s claim and we simply do not have the power to re-open them.  Similarly, we do not have the power to review the Tribunal’s findings of fact, save, insofar, as we can detect any error of law in relation to them, so far as the monetary payments are concerned.  

6.	We understand very clearly that Mr Cukic has a sense of outrage at what has occurred.  His view, which has some substance to it, although it was not accepted by the Tribunal, was that he has effectively worked for the same employer for many years, and that (to use the vernacular) he has been fiddled out of his rights by the bogus earlier redundancy.  His case is that his employer has gone on seeking to mislead him and the Tribunal, and has, indeed, misled the Tribunal in material respects. All this, not surprisingly, leaves Mr Cukic with a sense of outrage and injustice.  

7.	Those are feelings with which we sympathise.  But, as we have endeavoured to explain to him, our function is a limited one.  We have to review that part of the decision which has been left open to us by our predecessor Tribunal and decide whether or not there is any error of law in relation to it.

8.	That we will do in just a moment.  The only other point we need to make at this stage, is that Mr Cukic plainly feels, as a result of what has happened, that he has been branded a liar by the Tribunal, and, by implication, by the Employment Appeal Tribunal, because it has refused to re-open those parts of his case.  We do not see the case that way at all.  There is no suggestion in the papers we have read, that anyone is calling Mr Cukic a liar.  What inevitably happens in this sort of case, is that the Tribunal is given two versions of a particular event and has to decide which it prefers.  In this instance it appears to have preferred the evidence given by the respondent.  That does not mean that Mr Cukic was lying or that what he said was necessarily untrue.  The Tribunal has simply rejected his perception of the events as given to it.  Whether the Tribunal was right or wrong to do so is not, as I say, a matter for us, save insofar as it may demonstrate an error of law.  And, certainly, it would be quite wrong for us on the material available to us, to make any findings about the good faith or otherwise of the respondent company.  That is simply not in our remit.

9.	With those preliminary observations we turn to the issue which does specifically concern us.  In its reasons the Tribunal had to calculate the sums which were due to Mr Cukic consequent upon his dismissal.  Its finding as to the redundancy meant that Mr Cukic was entitled to three weeks payment - one week for each of the years which he had worked.  And at paragraph 15 of the reasons the Tribunal says this:-

“The Applicant [that is Mr Cukic] did not challenge Mr Chaplin’s evidence that on the termination of this employment he received a redundancy payment in the sum of £1575, and one week’s notice pay in the sum of £350.  The Tribunal found that those payments had indeed been made to the Applicant.  The Applicant’s gross weekly pay was £350.  Mr Chaplin calculated the redundancy payment in the belief that the Respondent was obliged to pay the Applicant 1.5 week’s gross pay for each of the three years that he had been employed.”

10.	We have the advantage this morning of being shown the notes made by the Chairman in relation to this point and, at paragraph 5 of a letter to the Registrar dated 18 September 2002, the Chairman records this:-

“At 12.55 the hearing was adjourned until 2.30pm for the Tribunal to consider its decision.  On considering the evidence it was not clear to us exactly how much the Respondent had paid Mr Cukic by way of redundancy payment.  At 2.30pm we recalled the parties and explained that we wanted to clarify the payments that had been made to Mr Cukic by the Respondent on the termination of his employment.  We recalled Mr Chaplin who was still under oath.  He told us that Mr Cukic received redundancy payment of £1575, and one week’s notice pay.  Mr Seifert [that is Counsel for the Respondent] conceded that Mr Cukic was entitled to a further two weeks’ pay in respect of notice.  I asked Mr Cukic if he had any further questions and if he wished to comment.  My notes record him stating only “I am entitled to two weeks’ further notice pay”.”

The Tribunal resumed its deliberations.  When I informed the parties of our decision I explained the matters set out in paragraph 27 of the extended reasons [I will come to those in just a moment].  As can be seen, in the Tribunal’s view the Respondent had paid the Applicant £155 in excess of its statutory obligation.  I was concerned that our conclusion that Mr Cukic had received more than his statutory entitlement might trouble him, and I invited Mr Seifert to confirm that the Respondent had no intention of seeking to recover that sum from him, in order to allay any anxiety he might have at the suggestion of an overpayment.”

11.	Mr Cukic told us today that he had to accept he did not, as the Chairman records, challenge that evidence given by Mr Chaplin.  He did not do so, he says, because he felt overwhelmed and intimidated by the Tribunal and the presence of a large number of representatives from the respondent, including of course, Counsel instructed by them.  Once again we sympathise with Mr Cukic and it may well be, that in arguing questions such as TUPE, he was at a disadvantage before the Tribunal.  But the fact that he did not challenge the evidence does not seem to us, on the facts of this case, in any sense fatal to him because it is quite clear, we think, that that evidence from Mr Chaplin was wrong.  There had been no payment of £1575. When it came to make its calculations the Tribunal in paragraph 26 of its reasons said:-

“The Applicant was born in 1965.  Pursuant to section 162 ERA he was entitled to a redundancy payment of £720 (i.e. 3 x £240, which was the statutory maximum for a week’s pay applicable at the effective date of termination of his employment).  The Respondent’s redundancy payment of £1575 was therefore in excess of its statutory obligation in the sum of £855.

27. On the face of it the Applicant is entitled to a further 2 weeks’ pay in lieu of notice in the sum of £700 [We interpolate that is £350 a week gross].  However, the Respondent is entitled to credit for the excess amount of the redundancy payment which had been made due to a mistake about the method of calculation.  That excess extinguishes the Applicant’s entitlement to a further 2 weeks’ pay in lieu of notice.  In fact, overall the Respondent has paid the Applicant £155 in excess of its statutory obligations.  Mr Seifert readily confirmed that the Respondent had no intention of seeking to recover that sum from the Applicant.”

12.	So the finding of the Tribunal was that there had been an overpayment.  What has happened since then, following the judgment of the EAT on the preliminary hearing, is that Mr Cukic has produced some documents which demonstrate with reasonable clarity that he was not paid the £1575 indicated by Mr Chaplin.  What we have, in particular, is a cheque for £1190 from the respondent to Mr Cukic and beneath that cheque is written a note which says that this sum, the £1190 represents 3 weeks redundancy, 1 week’s holiday and 2 days worked.  Mr Cukic has produced a payslip behind that cheque which demonstrates a basic pay of £350 a week gross and a gross pay for the particular period in question of £1557.96 which, as indicated from the previous note, comprises three weeks’ redundancy, one week’s holidays and two weeks’ pay as worked.  Mr Cukic believes and feels strongly that the figure given to the Tribunal was not a mistake, as the Tribunal thought, but a deliberate attempt to mislead the Tribunal and the fact that the £1575 is stated and, is close to, but not obviously equivalent to £1557, was not a mistake but a deliberate attempt to mislead.

13.	Whatever else is the case, it is, in our view, clear on the figures, that Mr Cukic was not entitled to redundancy pay, based on 1½ times his weekly wage for every year of the redundancy.  It is clear to us that the Tribunal was correct when it asserted that because of his age he was entitled to a redundancy payment of £720 being 3 x £240 which was the statutory maximum at that stage.  It has, of course, since been increased.  The reason why he is only entitled to one week for every year’s employment is because of his age.  Section 162(2)(b) of the Employment Rights Act makes it clear that the entitlement is one week’s pay for a year of employment not within paragraph (a) in which he was not below the age of 22 and, in his particular age band, there is no doubt at all in our mind, that £720 was the right figure.
14.	He was also, as was conceded, entitled to 2 weeks’ notice at the gross figure of £350 a week, that makes some £700.  So his overall entitlement in terms of redundancy and 2 weeks’ notice comes to £720 plus £700 or £1420.  He has been paid.  The cheque of £1190, which we have seen leaves a balance of £230.  But because the £1190 includes holiday pay and two days’ work, £380 has to be added back to meet the figures with the result that the total due to him, on our calculation, is £610 and that is the figure, in our view, which is outstanding.

15.	Now what has happened since, and, again, Mr Cukic has suspicions about the good faith of this, is that the respondent has gone into liquidation.  Before it did so, and, after the EAT had given its ruling on the preliminary hearing, the company made a further payment to Mr Cukic of £448.  Quite how that sum is calculated we are unable to fathom but the company plainly thought it met the objections raised by the preliminary hearing.  Mr Cukic refused that cheque and sent it back, taking the view, partly, that he was arguing about principle as well as about money but also we think because he, obviously as a layman, thought at that stage that accepting that payment might compromise the appeal which he was pursuing. 

16.	Since then, the company has, as we have said, gone into liquidation and is not represented before us today, having made it clear in correspondence that it was not going to do so. In these circumstances, it seems to us that the proper figure that is owed to Mr Cukic is indeed the £610. Even though he has refused the £448, in those circumstances, the appeal will be allowed and the respondent will be ordered to pay Mr Cukic the sum of £610.