William Mackenzie For Judicial Review Of A Decision Of The Employment Appeal Tribunal (scotland) V.
| Jurisdiction | Scotland |
| Judge | Lord Cameron of Lochbroom |
| Date | 02 August 1999 |
| Docket Number | P18/14a |
| Court | Court of Session |
| Published date | 03 August 1999 |
| OUTER HOUSE, COURT OF SESSION
| |
| P18/14a/99
| OPINION OF LORD CAMERON OF LOCHBROOM in the cause WILLIAM MACKENZIE Petitioner for JUDICIAL REVIEW OF A DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL (SCOTLAND) ________________
|
Petitioner: Henderson; Jardines
Respondent: Mrs Wolffe; Blackadder Reid Johnston
2 August 1999
The Petitioner in this application for judicial review as paragraph 5 of his Petition sets out, challenges a decision of the Employment Appeal Tribunal (Scotland)("the appeal tribunal") who are called as respondents. The Petitioner was called to answer before an Employment Tribunal ("the tribunal") a complaint by a former employee of his that she had been unfairly dismissed. Having heard evidence and submissions from the parties the tribunal determined on 14 September 1998 that the complainer had been unfairly dismissed. It made a monetary award in her favour. The Petition relates that the Petitioner sought to appeal against the decision of the tribunal to the Respondents. In the Petition it is stated that the grounds of appeal were rejected by the Respondents' Registrar on 22 February 1999 after it had been referred to the Employment Appeal Judge on the basis that there was no sustainable point of law. The Petitioner challenges "the Respondents' said decision" on the ground that "the Respondents erred in law in refusing to hear the Petitioner's appeal on the basis that there was no sustainable point of law raised in the Petitioner's grounds of appeal. There were sustainable points of law raised by the Petitioner in his notice of appeal." The Petitioner seeks "a declaration that the Respondents have jurisdiction to hear his appeal on the points of law raised in his grounds of appeal."
From the documents produced it appears that on 25 October 1998 the Petitioner's agents lodged with the Respondents a notice of appeal which intimated that the Petitioner's appeal was based on the following questions of law and related grounds of appeal:
"(a)Did the Tribunal err in law in its application of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to the facts?
(b)Did the Tribunal err in law by finding at page 5G that the letter of 1 May 1997 by the applicant was not a letter of resignation?
(c)Did the Tribunal err in law by finding at page 13E that the £4,000 payment was a 'loyalty payment' and not a payment in respect of the applicant's loss of statutory rights?
(d)Did the Tribunal err in law in deciding it was not just and equitable to take the £4,000 payment into account in calculating the applicant's compensatory award?
(e)Did the Tribunal err in law by finding at page 12D that the applicant's dismissal was not to any extent caused or contributed to by her own actions and behaviour?
5.The appellant's grounds of appeal are:-
A)The Tribunal erred in law in its application of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to the facts. At page 5H they determined that by letter of 1 May 1997 the applicant was terminating her employment relationship with the transferor as of 19 June 1997 which was the date of transfer. The letter and its acceptance altered the contract of employment between the applicant and the transferor on 1 May 1997 whereby it became a fixed term contract terminating on 19 June 1997. The rights, powers, duties and liabilities under or in connection with the applicant's contract of employment immediately before the transfer were, therefore, non-existent and incapable of being transferred to the appellant as transferee.
B)Having regard to the following facts:-
1.The applicant wrote a letter to the transferor of the undertaking in unequivocal terms resigning from her position at the date of transfer (page 4A-B);
2.The transferor was contractually bound by the missives to 'pay all redundancy money due to any employee employed by the seller' (page 6C); and
3.The transferor paid the applicant £4,000 prior to the transfer, a sum almost identical to her redundancy entitlement;
the Tribunal erred in law by finding at page 5G that the letter of 1 May 1997 was not a letter of resignation, a decision no reasonable tribunal properly directed in law could have reached and therefor perverse.
C)Having regard to the facts set out in head 2 above the Tribunal erred in law by finding at page 13E that the £4,000 payment was a 'loyalty' payment and not a payment in respect of the applicant's loss of statutory rights a decision no reasonable tribunal properly directed in law could have reached and therefor perverse.
D)The Tribunal erred in law in deciding it was not just and equitable to take the £4,000 payment into account in calculating the applicant's compensatory award.
E3)The Tribunal erred in law by finding at page 12D that the applicant's dismissal was not to any extent caused or contributed to by her own actions and behaviours. The applicant accepted that she regularly smoked cigarettes in the food preparation area and refused to countenance alterations to upgrade the menu. At page 8B-C the Tribunal found that the applicant did not smoke while food was around ignoring substantial evidence from other employees that she regularly smoked while cooking, a decision no reasonable tribunal properly directed in law could have reached and therefor perverse."
By letter dated 27 October 1998 the Deputy Registrar intimated to the Petitioner that for the reasons given in the letter the Respondents did not have jurisdiction to entertain the appeal. The Deputy Registrar stated that in his opinion "your Notice of Appeal does not identify an error in law, but seeks to challenge the Tribunal's findings in fact."
On 23 November 1998 the Petitioner's agents lodged a second Notice of Appeal. It contained some changes to the text, in that the questions of law and the grounds of appeal were now stated as follows:
"(a)Did the Tribunal err in law by finding at page 5G that the letter of 1 May 1997 by the applicant was not a letter of resignation?
(b)Did the Tribunal err in law in its application of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to the facts?
(c)Did the Tribunal err in law in deciding it was not just and equitable to take the £4,000 payment into account in calculating the applicant's compensatory award?
5.The appellant's grounds of appeal are:-
A)The Tribunal erred in law by finding at page 5G that the letter of 1 May 1997 was not a letter of resignation, by construing the unambiguous wording of the letter as meaning what was in the minds of the parties rather than what was actually said. In support of this ground of appeal the following authorities are referred to:-
Muirhead & Turnbull v Dickson 1905 7F. 636
Pren v Simonds 1971 3 All E.R. 237 (H.L.)
B.G. Gale Limited v Gilbert 1978 IRLR 453
Southern v Franks Charlesley & Company 1981 IRLR 278
B)The Tribunal erred in law in its application of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to the facts. It was not disputed that after the transfer the applicant was going to do the same job on the same basis as before. At page 5H the Tribunal found that by letter of 1 May 1997 the applicant was terminating her employment relationship with the transferor as of 19 June 1997 which was the date of transfer. The letter and its acceptance altered the contract of employment between the applicant and the transferor on 1 May 1997 whereby the notice provisions of the Employment Rights Act 1996, sections 86-93, were invoked, the contract terminating on 19 June 1997. The rights, powers, duties and liabilities under or in connection with the applicant's contract of employment immediately before the transfer were, therefore, non-existent and incapable of being transferred to the appellant as transferee. In support of this ground of appeal the following authority is referred to:
Secretary of State for Employment v Spence 1986 ICR 181 E.A.T.
C)The Tribunal erred in law in deciding it was not just and equitable to take the £4,000 payment into account in calculating the applicant's compensatory award. The missives bound the transferor to pay any redundancy money due to any employee. As at the date of transfer the applicant's redundancy entitlement was almost exactly £4,000. It was unreasonable not to take the ex gratia payment by the transferor into account."
By letter dated 24 November 1998 the Deputy Registrar advised the Petitioner that for the reasons stated in the letter the Respondents did not have jurisdiction to entertain the appeal and that, in accordance with Rule 3(3) of the Employment Appeal Tribunal Rules 1993, no further action would be taken on it. It is unnecessary to set out the reasons on which this decision proceeded because on 21 December 1998 a further notice of appeal was lodged for the Petitioner by his agents. A further question of law was added to those specified in the notice of appeal dated 23 November 1998. This was in the following terms:
"(a) Did the Tribunal err in law by failing to comply with the
rules of natural justice?"
This question was supplemented by a ground of appeal in addition to those stated in the earlier notice of appeal dated 23 November 1998 which were repeated in similar terms. This ground was :-
"5.The appellant's grounds of appeal are:-
A)The Tribunal erred in law by failing to comply with the rules of natural justice in that the Chairman of the Tribunal, Mr N.M. Hosie, had prior dealings with the appellant which may have biased him against the appellant. The Chairman is believed to be the senior court partner in the firm of Ledingham Chalmers, Solicitors, 17 Golden Square, Aberdeen. In 1997 his said firm acted for Mr. George McQuitty of McQuitty's, Solicitors, 97 Bonnygate, Cupar, Fife, in an ordinary action for payment of money against the appellant's property company Baluniefield Development Company Limited. Mr McQuitty had been...
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