Appeal No.	 EAT/842/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 November 2000

Before
HIS HONOUR JUDGE J R REID QC
MRS A GALLICO
MR D A C LAMBERT

MR W P HAFELE	APPELLANT

AXUS UK	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR NICHOLAS BOOTH
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme	

	JUDGE REID QC:		This is a preliminary hearing ex parte on an appeal by Mr Hafele, who was the applicant below, against a decision of an Employment Tribunal sitting at London (South) on 6th and 22nd May 2000. The decision was entered in the Register and  copies sent to the parties on 25th May 2000. By that decision, which was unanimous, the tribunal dismissed the complaint by Mr Hafele that his dismissal by the respondent company, Axus UK, was unfair.

1.	The appeal is essentially on the grounds that the company had not gone properly through their own disciplinary procedures and that the route by which they reached the decision to dismiss him was unfair.

2.	Mr Hafele’s employment had commenced in September 1987 and he was therefore by the time that he was dismissed a long-serving employee, since his dismissal did not take place until after an appeal which was finally heard on 10th August 1999.

3.	Mr Hafele was employed as a technical support adviser to the respondent company, which was engaged in the business of vehicle leasing to commercial customers. In that capacity he was required to respond to complaints by customers about their vehicles and, when necessary, to travel to the customers’ locations to inspect the vehicles concerned.

4.	The conditions under which Mr Hafele was employed issued to him on 10th may 1996 contain the following provision:

“You will normally be based in Uxbridge.
You should live within a reasonable travelling distance from your area or place of work. If you are a Field Based employee, you will be assigned a normal area of work. The company reserves the right to transfer your base or area of work within a reasonable distance and with reasonable notice.”

5.	A difference had arisen between Mr Hafele and the respondent over that because the company abolished its previous territory structure and the company asserts that after the introduction of those changes, sometime in September or October 1997, Mr Hafele could be required to respond to a call anywhere in England and Wales. By contrast Mr Hafele came to the view that he was entitled to decide in his own discretion whether or not he would go for any particular item of work and the practice he adopted was to go to jobs if they were within an area extending from East Anglia to Coventry or Birmingham, but to refuse to go to jobs if they involved travel over any greater distance.

6.	Clearly, not all was well in Mr Hafele’s employment by the latter part of 1998, because in January 1999 the respondents withheld from him the pay increment which he would normally have received and on 3rd February 1999 a meeting took place between him and Mr Tinkler, who was his line manager and was the Fleet Service manager. There was a long note of that meeting before the tribunal, which the tribunal accepted as essentially accurate. In that meeting it is recorded that Mr Tinkler told Mr Hafele that he had to change his whole approach to the way he dealt with people and communicated with them; that he had to push barriers down, become part of the team, and integrate and that was the only way that he would gain any respect from any of his colleagues. If he failed to do that or did not accept the criticism raised, then there would be no other alternative than reviewing his suitability for the position he held. Mr Tinkler agreed to draw up an action plan for him and the tribunal found that was in fact done.

7.	About the time of that meeting the company received information that a Mr Graham, apparently an employee of one of the companies they dealt with, refused to have any dealings with Mr Hafele because of an earlier problem connected with a Ford Mondeo. The result of that and another incident on 11th February, when Mr Hafele was asked to man telephones at the company’s headquarters during a time of staff shortages, led to a disciplinary hearing conducted on 23rd February 1999 by Mr Tinkler. At that meeting Mr Hafele was accompanied by a friend and again a full note, which was accepted as accurate, was taken of those proceedings.

8.	In relation to this, complaint is made that Mr Hafele was not informed in advance of who the customer was who was complaining and was therefore deprived of the opportunity of calling or producing statements from the other people of that company showing a different picture and that the customer himself was not produced at the meeting. It was also asserted that although the matter might have come late to the attention of Axus, it was a stale complaint, being, it is said, some sixteen months old.

9.	Taking those points, it is unfortunate that the complaint was stale, but it does not appear to us that that made it a complaint which, as a matter of law, could be said to be one which should not have been raised. It was dealt with promptly once it came to the attention of the company. The fact that the complaining customer was not called as a witness, does not seem to us to be in the slightest degree surprising or a matter of complaint. It would be rare indeed for an outside person to be called physically to give evidence in the course of an internal disciplinary hearing of this sought of nature, though there are organisations where it may happen. And so far as the fact that Mr Hafele was not notified of Mr Graham’s identify in advance, if that were indeed the case, this does not appear to have been an objection which he took at the time.  Nor did he suggest he could not remember the incident alleged.

10.	The result of the hearing, which dealt not only with the customer complaint but also with the telephone incident, was that a final written warning was given.

11.	It is said by Mr Hafele that he then sought to appeal against that warning and to use the tribunal’s words:

“10. … The Applicant’s case is that he appealed against the warning. In the course of these proceedings he produced a letter which is said to have been a letter of appeal. The Respondents deny that they ever received that letter, although it is accepted that there was a meeting on 10 March between the Applicant and Mr Stephen Armstrong, who was at that time the Respondents’ Operations Director. …”

12.	This leads to the second ground of complaint, namely that the appeal that Mr Hafele says he launched was never disposed of and that evidence about what happened following the disciplinary hearing was adduced from Mr Armstrong by way of a written statement because on the second hearing before the tribunal on 22nd May, he was apparently unable to attend for, we are told by Mr Hafele, business reasons and the tribunal saw fit to admit a written statement in the exercise of their discretion. What is said is that the tribunal should not have accepted that written statement and should not have accepted that Mr Armstrong never received the letter of appeal but they should have either rejected the written evidence or possibly adjourned the case so that Mr Armstrong could attend.

13.	In our judgment this was a matter which was within the discretion of the tribunal. Clearly they had to exercise caution in giving weight to what Mr Armstrong said in the light of Mr Hafele’s inability to cross-examine him. But we have no reason to doubt that the tribunal did exercise their caution. It is very noticeable that Mr Hafele did not apparently chase up the non-disposal of his appeal at any later time. He says that there was a meeting on 10th March 1999 or at about that time between himself and Mr Armstrong. He says, indeed, that there were two meetings at that time. Mr Armstrong gave evidence through his statement of one meeting only, not relating to the appeal. According to Mr Hafele there were two meetings, one relating to the appeal and one relating to other matters. If that were the case, it was most remarkable that he did not chase the matter up at any time before the next stage of events or indeed, so far as can be told as seen from the findings, at the stage of the subsequent disciplinary hearing or subsequent appeal. In all the circumstances, it seems to us that the tribunal were quite entitled, having admitted Mr Armstrong’s written statement (in which he referred to the non-appeal meeting) and no doubt treated it with proper caution, to make the finding which they did to the effect that the company had not received the letter of appeal. This is particularly in circumstances where the tribunal were not impressed by Mr Hafele as a witness whom they described as being both confrontational and evasive and whose evidence they disbelieved when he said that there had been an appeal meeting because the tribunal expressly found that the respondents did not receive the letter which was the appeal letter.

14.	The position, therefore, when it came to a further problem, which arose on 30th June 1999 relating to a complaint from an employee of a company called Paulig who lived in North Wales, that Mr Hafele would not go and have a look at her car, was that there was an unappealed final warning outstanding against Mr Hafele. When that further complaint was received a further disciplinary hearing was convened, which took place on 9th July 1999. Again it was dealt with by Mr Tinkler, assisted on this occasion by Ms Calverley, and a note of what took place was prepared which the tribunal accepted as being substantially accurate. The conclusion of that hearing was that Mr Hafele should be dismissed. He appealed against that, and this time there was no doubt that he did appeal, to Mr Armstrong who heard the matter on 10th August 1999. Mr Armstrong, in his statement, said there was a discussion of a number of earlier disciplinary issues, and he says, in effect, he accepted what had gone on below and that the result should stand.

15.	The complaints which are made in relation to this are really twofold. Firstly, as an issue of fact, that the tribunal should have disregarded the decision of the internal disciplinary hearing because Mr Hafele’s account was that the matter with Paulig had satisfactorily dealt with over the telephone. That, of course, was a matter of fact about which there can be no complaint. But secondly, that the decision to dismiss was one which was flawed because Mr Tinkler and then Mr Armstrong both took account of the earlier disciplinary record, including the allegedly unresolved appeal and the unsatisfactory procedure which had resulted in Mr Hafele not knowing in advance of the case that he had to meet.

16.	Given their finding as to the non-existence of an appeal against the final warning, a considerable part of the substance of this complaint vanishes. The position that Mr Tinkler and Mr Armstrong were left with was that there was a man employed by them who had been with them a long time, but whose conduct over a considerable period had left difficulties in continuing his employment. He had been refused a pay rise at the beginning of the year, he had then been counselled, and there had then been two separate matters giving rise to the first disciplinary hearing, and there had then been a somewhat similar problem relating to his manner of dealing with customers not that long afterwards. In all those circumstances, the tribunal took the view that the response was one within the reasonable range of responses. They went further than that and took the view that it might have been surprising if the respondents had come to any other decision. 

17.	This, it seems to us, was a conclusion on a fact to which the tribunal were perfectly entitled to come, given the view of the facts and in particular of Mr Hafele’s evidence which they had formed. 

18.	I should add that the appellant makes some further complaints of the tribunal. Firstly, in relation to the interpretation of his contract of employment, namely the dispute as how far he could be expected to go. That was a matter which the tribunal noted but it did not construe the contract one way of the other. Secondly, that the tribunal refused to adjourn the hearing so that Mr Armstrong could give oral testimony. That again was a matter in their discretion and it cannot be said that they acted in an unreasonable or injudicial manner in refusing that. Thirdly, that Mr Hafele was not allowed to cross-examine Mr Tinkler further after some questions at the end of Mr Tinkler’s evidence by the Chairman who raised concerns about Mr Hafele’s operational competence. That was not a matter which was raised at the time and can now hardly be the subject of a ground of appeal. And fourthly, that Mr Hafele was “subject to undue pressure when considering replies to questions. The chairman seemed particularly hostile, the appellant being unrepresented and unfamiliar with the process. On one particular occasion, whilst giving evidence, the appellant was instructed to leave the table to retrieve a fallen item  which could have remained in-situ. Further, the witness was placed directly before the respondent whereas it has been verified hearings normally place witnesses in a neutral position.” None of this, it seems to us, gives rise to any basis for complaint. There is no affidavit, incidentally, asserting bias or improper conduct and it sits particularly ill with the skeleton argument which requests that the matter be returned to the “original Industrial Tribunal”. 

19.	In all of those circumstances, it does not seem to us that there is any substance in any of the procedural points. Nor can we find any point of law in any of the other matters, which have been adumbrated before us which make it appropriate that this matter should go to a full hearing, the appeal will therefore be dismissed.