Campion v Hamworthy Engineering Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE MUSTILL,LORD JUSTICE WOOLF |
| Judgment Date | 29 January 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0129-5 |
| Date | 29 January 1987 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0058 |
[1987] EWCA Civ J0129-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Mustill
Lord Justice Woolf
87/0058
MR A.G. DYER, instructed by Messrs Bruce Lance & Co. (Poole), appeared for the Appellant (Appellant).
MR B.R. KEITH, instructed by P.J. Martin Esq., appeared for the Respondents (Respondents).
I will ask Lord Justice Mustill to give the first judgment.
On 17th July 1985 an industrial tribunal sitting at Southampton heard an application by Mr William Campion and concluded unanimously that he had been unfairly dismissed by his employers, Hamworthy Engineering Limited. This decision was embodied in reserved reasons delivered on 7th August 1985. The employers appealed to the Employment Appeal Tribunal. The outcome was an order allowing the appeal and substituting a finding that Mr Campion was not unfairly dismissed. Mr Campion now appeals to this court, contending that the appeal to the Employment Appeal Tribunal raised no question of law and should not have been entertained, and that the latter tribunal erred in substituting its own decision in the absence of any suggestion that the industrial tribunal had misdirected itself in law and any finding that its decision was perverse, in the sense of being a decision at which no reasonable tribunal, properly directed, could have arrived.
The events leading up to the claim may be quite briefly summarised. The employers are manufacturers in a large way of business. Mr Campion began work in their fabrication department on 28th February 1982. He was employed primarily as a profile cutter, using a flame cutting machine, but from time to time he was also asked to work as a radial driller. His work as a flame cutter was a skilled task, involving the cutting of plates from trace drawings. He was issued with the drawings and allowed to perform the job without constant supervision, although if problems arose he could consult the charge hand.
At the time in question Mr Campion was employed on the night shift where the degree of supervision was less than on the day shift.
One feature of Mr Campion's work was that the plates had to be cut when hot at a time when their dimensions were greater than when the plates were cool, so that allowance had to be made for shrinkage when cutting the plates to the size shown on the tracings. This subsequently became a matter of contention. After the dispute arose, the employers maintained that shrinkage should have been no problem. They said that the sound practice was to cut one plate and allow it to cool, when its final size could be compared with the tracing. Any necessary adjustment could then be made when cutting the remainder of the batch. Mr Campion replied that this would not deal with differential shrinkage as between units in the batch, which the employers answered by saying that this was the reason for having tolerances.
In the course of the time which he spent with Hamworthy, rather less than three years, there were a number of complaints about the standard of Mr Campion's work. A warning appears to have been given, on some occasion before January 1984, but no details are now available. There was another warning, according to the employer's records, on 31st January 1984, but again nobody can remember the nature of the complaint. On 31st May 1984 Mr Campion was using a radial drill. Another operative was working on a similar process. It was found that components had been drilled to oversize. Since the employers did not know which of the workmen was responsible, they issued warnings to both.
On 22nd November 1984 Mr Campion cut 38 plates incorrectly. At a disciplinary meeting it transpired that the tracings from which the plates were cut had been incorrectly dimensioned. It was, however, Mr Campion's task to check the first plate against the original drawing rather than the tracing. The employers dismissed him, but after an appeal he was reinstated and a suspension for three days was substituted.
Matters continued to go badly. Rejection notes were issued in respect of components on 23rd January, 25th January, 12th February, 20th February and 21st February, and finally on 27th February when four items were found to have incorrect external and internal dimensions. The employers blamed Mr Campion for all these instances except for the occasion on 25th January. Mr Campion accepted that he was at least partly to blame on 12th February, but attributed the other faulty dimensions to shrinkage. The employers were not satisfied with this explanation and at the end of a disciplinary meeting their works manager (Mr P.A. Instrall) told Mr Campion that he was dismissed.
Mr Campion then brought an appeal, as provided for by the employers' disciplinary procedures. The appeal was heard by Mr A.W. Mainstone, the welfare officer, who had spent twelve years on the shop floor before acquiring twenty years' experience in personnel management. The hearing, lasted for two hours. Mr Campion's union representative put Mr Campion's case that errors due to shrinkage should be accepted. Mr Instrall and Mr Dodd (the charge hand) replied that other operatives managed by checking first-offs. The meeting then adjourned, whilst Mr Mainstone had a dicussion in another room with Mr Instrall and Mr Dodd, although, of course, it was Mr Instrall who had originally made the decision to dismiss Mr Campion. The meeting then reconvened and Mr Mainstone announced that the dismissal was upheld.
In due course Mr Campion applied to the industrial tribunal for a decision on the question whether he had been unfairly dismissed. In their notice of appearance the employers gave "poor workmanship" as the reason for dismissal. When the matter came before the tribunal evidence was given by Mr Instrall, Mr Dodd, Mr Mainstone and Mr Campion, and also by Mr Burt, another profile cutter who was also the night shift shop steward.
As previously stated, the industrial tribunal decided in favour of Mr Campion. In their reasons for decision the tribunal set out the facts and concluded as follows:
"13. Mr Campion was working on the night shift at the material times. He was required to perform precision operations with materials which apparently were somewhat unpredictable in their behaviour. The supervision on the night shift was negligible. The errors attributed to Mr Campion in the quarantine notes which the respondents considered at the time of his dismissal had not been brought to his attention. So far as any mistakes in January or February 1985 were concerned, he was unaware of them until he was called to the disciplinary hearing.
"14. The respondents concluded that Mr Campion's work did not reach the required standards. They compared the number of quarantine notes which related to his work with those relating to the work of other employees. We are not satisfied that they properly considered whether they were comparing like with like. The conditions on the day shift were very different from the conditions on the night shift, and the other night shift operator, Mr Burt, was doing different work.
"15. We cannot categorically say that the appeal procedure was wholly unfair. But for Mr Mainstone to consult with Mr Instrall, who made the original decision to dismiss, and Mr Dodd, as to whether the appeal should be upheld or not certainly gave a very strong appearance of unfairness.
"16. Finally, although the respondents denied the connection, one cannot help suspecting that there was a connection between the intention to close down the night shift and the dismissal of Mr Campion in order to facilitate that operation.
"17. We conclude for the reasons stated above that this dismissal was unfair."
From this decision the employers successfully appealed to the Employment Appeal Tribunal. The grounds given by this tribunal for holding that the appeal should be allowed were stated in the concluding passages of the judgment as follows:
"So one is left ultimately with the basis of the decision which, in our judgment, is paragraph 7 and to some extent paragraph 13. The basis is as follows: that the bad workman-ship was due to shrinkage and that it was not possible really to measure precisely the dimensions of sheets when they are hot. Here the tribunal is dealing with a...
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