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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Cukic v Vordula Ltd [2002] UKEAT 875_02_0411 (4 November 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/875_02_0411.html Cite as: [2002] UKEAT 875_02_0411, [2002] UKEAT 875_2_411

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APPEARANCES

 

For the Appellant	MR J DAVIES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J McMULLEN QC

1. This is a case about unfair dismissal, redundancy payment, notice pay and fair Employment Tribunal procedure. We will continue to refer to the parties as Applicant and Respondent. It is an appeal by the Applicant in proceedings against the decision of an Employment Tribunal sitting at London South, Chairman Mr M. Zuke, promulgated with Extended Reasons on 4 July 2002. The Applicant was not represented. The Respondent was represented by a Solicitor.
2. The Applicant claimed unfair dismissal and breach of contract. The Respondent contended that payments had been properly made and that the dismissal was by reason of redundancy and it was fair.
3. The essential issues as defined by the Employment Tribunal were unfair dismissal and the amount of payment due to the Applicant.
4. The Employment Tribunal found that the Applicant was not unfairly dismissed, that his claim for redundancy payment failed and his claim of wrongful dismissal, that is, lack of notice, failed. The Applicant appeals against those findings on grounds set out in the Skeleton Argument, which has reached us today, and in a Notice of Appeal which is extremely detailed and in oral arguments advanced today on his behalf by Mr Davies acting under the ELAAS Scheme. We are very grateful to Mr Davies for the careful way in which he has put the arguments which are available.
5. The first issue can be disposed of quickly. The Applicant complained that the procedure adopted by the Chairman and the Tribunal members was unfair. An affidavit was produced. The Chairman has commented on it. It is not pursued at this appeal. It is dismissed.
6. The Applicant contended his calculation of redundancy payment was incorrect and that he was unfairly dismissed. In the course of its judgment the Tribunal had to decide on an issue under TUPE. We will return to that.
7. The Respondent is the owner of the Conservatory, an Italian restaurant in Wandsworth South West London. At the relevant time it employed three chefs in the kitchen. The Applicant was employed by it as a pizzas chef, from the Tribunal found, 18 October 1998, until the relationship ended by his dismissal on 4 November 2001. The restaurant served Italian food. There was substantial local competition from a branch of a well known chain which caused a dramatic fall in the income of the restaurant. As a result the Respondent decided to make redundancies and the Applicant was dismissed by reason of because out of the three chefs he prepared the most limited variety of food.
8. The Tribunal directed itself by reference to the relevant provisions of the Employment Rights Act 1996, section 98, unfair dismissal; section 139, redundancy, sections 219 and 214 continuity of employment and section 186, notice, and to the leading authorities which are Williams v Compare Maxam Ltd [1982] IRLR 83; Secretary of State for Employment v Cowen and Beaupress Ltd [1987] IRLR 169 and Rowan v Machinery Installations (South Wales) Ltd [1981] IRLR 122. It demonstrated its application of TUPE to the facts in 1998 by findings which it made in paragraphs 4 and 22. As it found, from March 1993 the Applicant had been employed at the restaurant when in October 1998 the entire premises were sold to Mr Cretella.
9. The Employment Tribunal considered, amongst other matters, the evidence given to it by Mr Cretella, by the Applicant, and in the form of the sale agreement. The issue for the Employment Tribunal was to consider whether the Applicant had become employed by the Respondent, pursuant to a TUPE transfer, giving him continuity of service from 1993. He had been given in 1998 a payment described as a redundancy payment and found by the Tribunal to be so. If that was not a proper redundancy payment under the statute, because there was a TUPE transfer, the Applicant would be entitled to make calculations for redundancy pay and notice pay based upon an additional five years' service.
10. The Applicant submitted today that the Employment Tribunal had erred in its approach to the TUPE issue. The Applicant contended that the Tribunal erred in the calculation of redundancy pay, even if based upon service dated from 1998 and it follows, with much greater force, if the calculation ought to have been based upon 1993 service.
11. Further, the Applicant contended that if he were right on either of those matters, the decision on unfair dismissal should be revisited because further findings would be necessary in the light of a decision by the Tribunal about the credibility of Mr Cretella.
12. The conclusion we have reached is that the Applicant's case should go forward to a full hearing in respect of only one issue, that is the calculations. In our judgment the Employment Tribunal correctly directed itself, and there is no dispute, on the question of who has to put before the Tribunal evidence to prove a TUPE transfer, that is the onus is on the Applicant.
13. The Tribunal found that he did not introduce such evidence as would prove a TUPE transfer. On the material which it had the Tribunal indicated factors consistent with a TUPE transfer, but found them wanting in respect of issues which it found to be relevant. In other words, a number of questions remained unanswered. The Applicant feels aggrieved because, representing himself, he would not have known the details. It is submitted that the Tribunal is under a duty, if it had those questions in mind, to resolve them by itself putting those questions to the Applicant or to the Respondent. In our judgment the Tribunal is required to form a view, on the evidence put before it, and has made a decision on an issue of fact which was within the scope of its statutory responsibility. It has decided, having weighed the factors which it heard about that there was not, in 1998, a TUPE transfer and that is a decision which was open to it.
14. The Employment Tribunal then moved to consider the calculations which would flow. It seems to us that the Applicant has demonstrated simple arithmetic errors in the calculations done by the Employment Tribunal. For example, in paragraph 26, the Tribunal takes as the base figure for the calculation of redundancy pay a figure of £240. This is neither the gross figure nor the net figure demonstrated by the Applicant in his Originating Application and accepted by the Respondent in its Notice of Appearance but is of course the statutory cap. The figure for notice pay would be based on the uncontested figure of £350 a week if gross, less if net. It is for that reason that the directions which we give will include the drawing up of a schedule specifically to deal with the problems but, in our judgment, the arithmetic put to us indicates a payment of £1,050 which the Applicant, reasonably arguably can make at a full hearing. The Applicant complained that he had in his bundle of documents a photocopy of a cheque indicating that the figure found by the Tribunal, on the evidence of Mr Cretella, to have been £1,575 by way of redundancy pay and other factors was incorrect. The photocopy shows a payment of £1,090 which represents some redundancy pay, but also a week's holiday owing and some days pay.
15. We accept that there is a reasonable prospect of success in Mr Davies' point that, far from the Applicant being overpaid, he was underpaid by a figure of £1,050. That is matter which will then go forward to a full hearing, unless it is resolved before that time.
16. The Tribunal also dismissed the Applicant's claim that he had been unfairly dismissed. In our judgment the Tribunal directed itself correctly to the relevant provisions, to the size of the Respondent's business, and accepted the Respondent's contention that it had made a decision which was within the band of reasonable responses to it, facing as it did the problems of competition. In our view this was a decision open to the Employment Tribunal having directed itself, as we said above, to the relevant provisions and to the cases. It cannot be faulted when it failed to uphold the Applicant's claim of unfair dismissal.