Eitan v TWA Inc [1996] UKEAT 374_96_1110 (11 October 1996)

JUDGMENT PRELIMINARY HEARING - EX PARTE © Copyright 1996 APPEARANCES For the Appellant MR M COHEN (Lay Representative) MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether Mr Eitan has an arguable point of law in his appeal against a decision of an Industrial Tribunal held at London (North) on 12th January 1996. The decision which was entered in the Register on 15th February 1996, and was a unanimous one of the tribunal, was that the applicant was unfairly dismissed by the respondents TWA Inc, but that he had contributed to the extent of 100% to his own dismissal, and that therefore it was not just and equitable that he should receive any award of compensation. The brief facts as found by the Industrial Tribunal were that Mr Eitan was employed as Area Security Manager and as Operations Manager for a company which was a subsidiary of TWA. In that capacity he was responsible for the provision of security to TWA and other airlines at Berlin and various other European locations. His employment began on 19th October 1992 and continued until he was dismissed on 31st March 1995. The first task for an Industrial Tribunal faced with a complaint of unfair dismissal is to determine what the reason was for the dismissal, and then having found a reason, if it falls within Section 57(1), to determine whether the dismissal was fair or unfair in the accordance with Section 57(3). A tribunal is required to make findings of fact upon which it relies in arriving at its conclusions, and accordingly in paragraph 3 of their decision they referred to two matters which they identified as being the reasons for the dismissal, both of which related to the conduct of the prospective appellant. That was conduct of his in relation to the employment and possible redundancy of certain workers at Frankfurt Airport, and separately and secondly, the conduct of the appellant in relation to the use or abuse of "interline" travel facilities, which are arrangements between airlines enabling employees of airlines to travel either for free or for reduced fares on their services. The tribunal set about considering the first issue, that is the behaviour of the appellant in relation to the possible redundancy of certain workers at Frankfurt Airport, and they did that between paragraphs 4 and 11 of their decision. They referred in paragraph 6 to the statutory requirements of the redundancy procedure in Germany, which they said included the preparation of a "social list" identifying all of the staff of the undertaking and giving them points in accordance with their particular circumstances, and providing for temporary and probationary staff to be made redundant before permanent staff, and to the fact that the social list must be approved by the Works Council. The nature of the allegations made against the appellant were that in effect he abused his position as a manager by procuring two people to consider leaving TWA which would not have been in TWA's best interests, so that they could take up employment with a company managed by his acquaintance Mr Moshi Cohen, a former IAS director, who had set up another and rival organisation. They concluded in relation to this, that as a matter of fact the appellant did not tell a Miss Boudou that she was not to be made redundant, and offered her or suggested that she should go and see Mr Cohen who offered her employment with a new aviation firm at Frankfurt Airport. It is said also that he asked a Mr Azimi if he wanted to leave the TWA subsidiary, telling him that there would be a job opening from him as a document trainer in Abu Dhabi, which would be a good opportunity for him. It is to be noted that Mr Azimi was not a person who was one of those on the "social list" identified as being subject to redundancy. The second issue before the Industrial Tribunal, that is the alleged unauthorised use of his pass to obtain inter-line travel on other airlines, was dealt with between paragraphs 12 and 14(c) of their decision. The effect of the findings of fact was that Mr Eitan had been told and ordered to surrender his pass on 3rd March because of suspected abuse, having previously been given final warnings. The tribunal found as a fact that notwithstanding the warnings, he continued to use the pass on a number of occasions thereafter. On 31st March a disciplinary hearing took place, and the tribunal were critical of the procedure adopted by the airline, and said that it was unsatisfactory in a number of respects, which they identified in paragraph 18 of their decision. Having directed their minds properly on the law in paragraph 20, they concluded that the appellant's behaviour alone was the sole cause of his dismissal for the reasons which they then set out. Included amongst them were the facts that he arranged for Miss Boudou to see a competitor with a view to her finding employment there, and proposed to Mr Azimi that he leave the company's service, and that Mr Eitan was untruthful when asked about these matters. Then they make findings in relation to the use of the pass to which I have referred. In the proposed Notice of Appeal, we have a letter from a firm of solicitors, Wegg-Prosser and Farmer, which Mr Cohen on behalf of the appellant, has amplified in oral argument before us. We have already observed, in the course of this hearing, that this tribunal only has jurisdiction to review errors of law. It is said that the first error of law was the tribunal's failure to obtain expert advice on the law of redundancy in Germany. It is said that there was a dispute between the parties in evidence before the tribunal as to the status of the "social list" and whether it was possible to add or delete names from it. It is said that the Industrial Tribunal having preferred the evidence of the employers on this issue, have arrived at a conclusion which is just simply wrong, as can be shown from looking at a text book. Whilst we understand the force of what is being said in relation to this point, we have to say that it is not a point of law at all. The question of what German law provided, if relevant to the tribunal's decision, had to be decided by them on the evidence presented to them. It is not for the Industrial Tribunal to carry out its own investigations. In this country it would have been improper for the tribunal so to have conducted themselves. It is for the parties to present whatever evidence they wish before the tribunal, and for it to adjudicate on the evidence before it. It is not suggested that the book of law to which reference was made on the hearing of this application was ever presented to the Industrial Tribunal. They cannot be criticised for the decision that they have arrived at, and since this document could have been produced to them, it is not a case where the matter should be remitted back to the tribunal, so that a further hearing could be held. Public policy requires that parties in this country have one, and only one opportunity, to prove their case. There is an obvious public interest in cases being finally disposed of, rather than allowing parties, when they are faced with a decision against them, to re-open the case any number of times thereafter. Accordingly, we are not of the view that there is an arguable point of law. In any event, we would respectfully point out that even if the tribunal were wrong in that respect, it certainly would not have affected their finding in paragraph 8 as to what happened vis-à-vis Mr Azimi. Secondly, it is said that the Industrial Tribunal failed to appreciate or to mention that there was in Mr Eitan's view a conspiracy conducting by three personnel in TWA against him. That Mr Winter, for example, had a personal interest in seeing Mr Eitan removed because he wanted his job so as to avoid any possible redundancy for himself. It seems to us that Mr Eitan, who was represented on the first day of the hearing by a representative of a trade union, and by Counsel subsequently, and I think by Mr Cohen on yet another occasion, had the opportunity to put forward whatever he wanted to to the Industrial Tribunal. If it was his case that he believed that he was the victim of a conspiracy, he had the opportunity to present that case. The Industrial Tribunal, are not to be criticised for failing to refer to it in their decision. It is not the law that an Industrial Tribunal is obliged to mention every matter which is raised before them, otherwise and obviously, their decisions would be impossibly long and become quite incomprehensible. Accordingly, we are not satisfied that they have failed to take account of that which was put before them, and if it was not put before them, they obviously cannot be criticised at all. None of the other points raised in the letter from Wegg-Prosser show any arguable point of law. They are all matters which go to the assessment of the evidence which the tribunal received. It is entirely for the Industrial Tribunal to assess the evidence before it. Accordingly, we are satisfied that there is no arguable point of law raised by the appeal fit for a full hearing. Thus, we are of the view that this appeal must be dismissed. [That said, we would wish the appellant well, and thank you for your submissions.] BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII