Appeal No. EAT/1036/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 December 1999

Before
HIS HONOUR JUDGE WILKIE QC
MR D J JENKINS MBE
MR B M WARMAN

THE POST OFFICE	APPELLANTS

MR J M THOMAS	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR K BRYANT
(Counsel)
Messrs Bond Pearce
Solicitors
Ballard House
West Hoe Road
Plymouth
PL1 3AE	

HIS HONOUR JUDGE WILKIE QC

1.	This is an appeal by the Post Office against the finding of the Employment Tribunal sitting at Truro that the Applicant, Mr Thomas, was unfairly dismissed but contributed to his dismissal to the extent of 30%.  The decision arose out of a hearing on 17th June, the decision was dated 30th June.  

2.	Mr Thomas was employed as a Postman and he was dismissed for gross misconduct, namely the wilful or intentional delay in delivering two recorded delivery letters.  The conditions of his employment provided that inter alia deliberate action taken by an employee that causes mail to be delayed, is called “wilful delay”.  Where proven, such breaches of conduct can lead to dismissal, even for a first offence.  Indeed it records that wilful delay is a criminal offence and can result in prosecution.  Thus the seriousness of such conduct was pointed out in the conditions of employment.  The Tribunal found that there was indeed wilful delay by Mr Thomas of the delivery of two recorded delivery letters.  This was on the undisputed basis that Mr Thomas was the only Postman working from that particular office, he knew that the addressee was in hospital, he took the view that someone else would be available to deal with the post and therefore delayed the recorded delivery items.  He did not comply with the procedure which calls upon there to be an attempt to deliver it which, if unsuccessful, results in certain paperwork being completed rather than holding the delivery back for substitute delivery to someone else.  

3.	The Employment Tribunal considered that they had to apply their minds to three primary factors, namely, whether the Respondents genuinely believed that there had been misconduct, whether they had reasonable grounds for that belief and whether they carried out reasonable enquiries.  Those are the three primary decision for the Tribunal to take in applying the well known case of British Home Stores Ltd –v- Burchell (1978) IRLR 379 .  They were satisfied without any difficulty as to matters 1 & 3.  They considered the second matter, namely, whether there were reasonable grounds for their belief.  In paragraph 24 of the decision they appear to have formed the view that the Appellant did have reasonable grounds for that belief.  The Tribunal then have to consider whether in all the circumstances the decision to dismiss was reasonable or unreasonable and they specifically begin to address that point at paragraph 25.  Immediately after that paragraph they go on in paragraph 26 to say this

“There must be degrees of misconduct in this context.  If a village postman knows that a member of the community is in hospital and decides that there is no point in putting a recorded delivery notification card through the letter box and so delays the recorded delivery letter after learning from his superior that another person can be found to deal with it, the postman can hardly be guilty in our judgement of gross misconduct warranting dismissal unless he has been specifically warned that such conduct even with the best of motives can lead to dismissal”

4.	In our judgment that was this Tribunal applying itself properly to the question of whether the decision to dismiss was reasonable or unreasonable and in so doing not in any way arrogating the role of the employer in the matter.  In paragraphs 27 – 30 they expressed themselves on the question whether Mr Thomas actually did fully understand the strict requirements of the procedure which had changed some 4 or 5 years previously and had been announced in a variety of ways which he had read and which he thought he had understood.  The Tribunal reached the conclusion that Mr Thomas simply did not understand the procedure.  Mr Bryant has argued that in these paragraphs this Tribunal was embarking on an impermissible exercise, namely substituting their view for that of the employer, where as it had previously applied itself to the correct series of tests by mainly looking at the employer’s belief as to the existence or otherwise of gross misconduct.  The Tribunal, however, in paragraph 31 of the decision alert themselves to the impermissible nature of such an exercise, because they say in terms 
“We are conscious that we should not substitute our own view: we must consider whether the Respondents acted fairly.”

They then go on in paragraph 32 to say this

“For those reasons we accept that the Respondents have established a potentially fair reason – misconduct – but we do not find that they have acted reasonably in treating that as a sufficient reason for dismissal.”

5.	It seems to us that what this Tribunal is plainly doing in that paragraph is disavowing the impermissible enquiry which it appears they have undertaken in paragraphs 27-30.  Having reminded themselves of its impermissible nature in paragraph 31 and for those reasons accepting that the Post Office had established the potentially fair reason of misconduct.  They did, however, as they were entitled to do, go on to consider the question which was for them, namely whether the dismissal was in all the circumstances reasonable or unreasonable.  They concluded that it was not reasonable having regard to the matters that they had averted to in paragraph 26.  In our judgment that was an entirely proper approach for them to take and does not disclose any error of law, nor are their reasons, when looked at in detail, insufficient to identify the process of reasoning which the Tribunal undertook.  

In order to underscore the correctness of that approach in paragraph 33 they go on to say

“Whilst we accept that Mr Thomas acted through the best of motives he ought to have been aware that he was not observing the strict requirement of delivering the letters to the address concerned whether or not he knew that the individual resided there.  He should therefore bear a degree of blame for the dismissal and we will reduce compensation by 30%.”

6.	In our judgment that was an entirely proper decision for them to take.  It reflects the analysis which they had set out in paragraph 26 which informed both their decision that the dismissal was unfair and the degree of contribution which they found Mr Thomas had made to his downfall.  Accordingly, despite Mr Bryant’s able and clear arguments to the contrary, we are of the view that there is no reasonably arguable point of law in this appeal, nor was the decision a perverse one.  It was a decision that was set out clearly and understandably.  Therefore this is an appeal which we dismiss at this preliminary stage without the requirement of a full hearing.