Appeal No. EATS/0054/02

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 15 May 2003

 
Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MISS S B AYRE
MR M G SMITH

 

DAVID MORRISON OGILVIE	APPELLANT

 

 
NEYRFOR-WEIR LTD	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT
 
Revised (23 June 2003)

 

 

 

 

 
	APPEARANCES

 

For the Appellant	Mr F H Lefevre, Solicitor
Of-
Quantum Claims
Employment Division
70 Carden Place
Queens Cross
ABERDEEN   AB10 1UP

 

For the Respondents

 

 

 

Mrs S Gilchrist, Solicitor
Of-
Messrs McGrigor Donald Initiative
Solicitors
Pacific House
70 Wellington Street
GLASGOW   G2 6SB

 

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
 
1.	This is a hearing of an appeal brought by Mr David Ogilvie against the unanimous decision of the Employment Tribunal at Aberdeen, that he was not unfairly dismissed by the Respondent, Neyfor-Weir Ltd. The conclusion of the Tribunal was that when he resigned on 11 April 2001, he was not constructively dismissed, consequently, there was no dismissal and, thus, no issue arose as to whether such dismissal was, or was not, fair.
 
2.	The circumstances can be briefly described. The Appellant was, in his latter position with the company, Business Development Manager, having previously been described as UK Sales Manager. In that capacity, he had primary responsibility for development in new areas as well as looking after ongoing business, and that took him to the Caspian Sea area, the Middle East and other parts of Europe. He was required to travel in order to carry out his duties. He travelled to Saudi Arabia between 20 January and 3 February 2001, and it was planned that there would be a particular presentation there, at which it was anticipated that he would require to be present, in his senior capacity. He travelled to Italy between 12 March and 14 March 2001. He then had to travel to Italy between 26 March and 30 March 2001 and he then was required, immediately on his return from Italy, to travel to France between 1 April and 4 April 2001, and he returned to work on 6 April 2001.
 
3.	It appears that on 8 April it was discovered that the presentation in Saudi Arabia, at which it was anticipated that his presence was going to be required, had been fixed, it seems, without consultation with him, for 16 and 17 April which was going to require him to leave the United Kingdom on Good Friday or Easter Saturday, the 13 or 14 April, when, of course, staff of the company would ordinarily expect time off as being public holidays, and, when, specifically, his sister-in-law’s engagement party in Liverpool had previously been fixed, which he and his wife had every desire and intention to attend, on Easter Sunday, 15 April. The Appellant was extremely unhappy about his having to miss his sister-in-law’s engagement party, as no doubt was his wife, and he felt it unreasonable that he should have to travel to the presentation, and he sought to persuade his immediate superior, Mr Steven Debreux, that he did not need to go in the circumstances. Mr Debreux was away on business, and he returned on 10 April. Mr Debreux was absolutely insistent that the Appellant went to Saudi Arabia and said so in strong terms, including the words, apparently,  “I don’t give a shit what you have arranged, you will have to travel and that is all there is about it.”
 
4.	The Appellant was unhappy about that and went home and typed out a letter of resignation, but, on the following morning he decided not to deliver that resignation letter (and did not do so) but, rather, to return one last time to persuade Mr Debreux to change his mind.  The Appellant accordingly attended Mr Debreux’s office to discuss the matter and Mr Debreux, it seems, left the office to speak to the Human Resources department of the Respondent company, over the telephone. When he returned, he advised the Appellant that he had two choices. He could either remain in employment and go to Saudi Arabia, or he could leave. This was plainly elevating the previous instruction by the company into what might be called a dismissal instruction, that is making it quite plain that if he did not obey it, he would be dismissed.
 
5.	The conversation was taking place between Mr Debreux and the Appellant in the Appellant’s office, into which Mr Debreux had come, and it appears that Mr Debreux did not close the door behind him when he came in, and the door remained open. This same conversation in which the dismissal instruction was reiterated was quite plainly in strong language because, in the course of it, Mr Debreux said, and is found by the Tribunal to have said, that the Appellant was a “fucking cunt”. The refusal, therefore, of his request to attend his sister-in-law’s engagement party, difficult as that was for him to accept, and, elevated into a dismissal instruction, was thus accompanied by the grossest language, and, the door of the office was open. The Appellant immediately went to type out a further letter of resignation, and, did so. That letter, which he delivered, is in very short terms, simply giving immediate notice.
 
6.	He issued an originating application and, at the hearing before the Employment Tribunal, his claim was dismissed.
 
7.	The conclusion of the Employment Tribunal was, as we have indicated, that he was not constructively dismissed. The Tribunal found, in the paragraph which we have numbered, in the unfortunate absence of paragraph numbering, for ourselves as paragraph 15, that it was accepted practice in the oil industry that employees may be asked to work public holidays with little or no notice and it is accepted that employees in the position of the Appellant may be asked to go abroad, on little or no notice. The finding by the Tribunal in that paragraph was as follows:-
 
“If an employee is asked to work over a public holiday or asked to go abroad at short notice, the only reasons which will normally be accepted for not going are the death of a close family member, very serious illness in a very close family member or the birth of a child where the father wishes to be present at the birth, a father giving away his daughter in marriage or alternatively a very specific event keyed to a close member of family.”
 
8.	The Tribunal did not go on to consider whether the engagement party of a sister-in-law fell within that latter description. The Tribunal then dealt with the question as to whether the conduct complained of by the Respondent amounted to a breach of the implied term of mutual trust and confidence. The Tribunal made reference to Western Excavation (ECC) Ltd v Sharp [1978] IRLR 27, which is of course, the fount of cases of constructive dismissal, and to Woods v W M Car Services (Peterborough) Ltd [1981] IRLR 347.
 
9.	So far as the use of abusive language is concerned, there was specific reference made by the Tribunal to Isle of Wight Tourist Board v Coombs [1976] IRLR 413, in which a statement by a director of his personal secretary, on two occasions, on a Monday morning, that she was “a bitch”, said to the secretary direct, and “an intolerable bitch”, muttered to a third party, was concluded to be repudiatory conduct, sufficient to amount to constructive dismissal. Reference was also made to Palmanor Ltd v Cedron [1978] IRLR 303 in which it was again found to amount to constructive dismissal where, in that case, the manager of a night club had said to a subordinate that he was a “big bastard”, a “big cunt”, and “pig-headed”, and that “I can talk to you any way I like, you big cunt”.
 
10.	The conclusion of the Tribunal against that background is set out in the paragraph numbered by us as number 26 and it reads as follows:-
 
“In this case however the Tribunal were of the view that the conduct complained of did not amount to a breach of this term. There is no doubt situations where words used by Mr Debreux would be sufficiently unusual and cause sufficient upset to amount to a breach of the implied term of mutual trust and confidence. In the case of Isle of Wight Tourist Board v Coombs [1976] IRLR 413 similar words were used and repeatedly used, that is in fact a reference to the fact that the words were used twice, in speaking to a middle aged female private secretary.  In that case account was also taken of the fact that a closer than normal relationship exists between the private secretary and her immediate boss and that in the circumstances of such a close and private relationship the use of such words might have the effect of seriously breaching mutual trust and confidence. In this case the Appellant is a 37 year old oil industry executive who has worked offshore. Although not desirable it is not particularly unusual for such words to be used in the oil industry. The Appellant’s manner in giving evidence regarding the words used clearly indicated that the words were familiar to him and he had no particular difficulty in enunciating them for the Tribunal. The Tribunal also took account of the fact that Mr Debreux, who uttered the words was French and was not a native speaker of English. In all the circumstances the Tribunal considered that although the use of such words was inappropriate it did not amount to a repudiatory breach of the contract. In any event, the Appellant was quite clear when giving evidence that the reason he left was that he was not prepared to cancel his private engagement.”
 
The Tribunal thus concluded that none of the company’s action, taken in isolation, amounted to a repudiatory breach and that the events taken together did not amount to breach of the implied term of trust and confidence.
 
11.	The outcome was that a senior director, already unhappy about the prospect of having to miss his sister-in-law’s engagement party, by having to return at very short notice to Saudi Arabia, when asking if he could, nevertheless be excused from that engagement, not only was told that he would be dismissed if he did not go, but was abused in the roundest terms, as we have described, with the door open; and that that conduct by the employer did not amount to a breach of the mutual term of trust and confidence. It is, on any basis, a surprising conclusion.  
 
12.	We have been correctly reminded, by Mrs Gilchrist, on behalf of the respondents, who has argued the matter extremely ably, of the limited basis upon which an Employment Appeal Tribunal can interfere with the conclusion of the industrial jury. We have, of course, recently been reminded of this by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634.  The Appeal Tribunal is not entitled to interfere if it would have itself reached a different conclusion and, indeed, the traditional formulation that no reasonable Tribunal would have reached the conclusion it did, is itself, although capable of being formulated by an Appeal Tribunal, not necessarily successful in justifying interference by that Appeal Tribunal. Words have been used by the Courts in sanctioning interference, such that the Tribunal ‘went completely off the rails’, or such kind of descriptions, and, that too, is not necessarily a sufficient formulation of the basis upon which the Tribunal, on appeal, can interfere. It is necessary in order to secure the proper workings of Employment Tribunals all over the country that their sovereignty and independence must be respected, and that Appeal Tribunals must only interfere, genuinely, on points of law.
 
13.	Against that background, Mr Lefevre has not, at any rate expressly, sought to rely on the perverse nature of the Tribunal’s conclusion, in order to seek to justify his case that this Tribunal should interfere He has formulated his case without reference, specifically, to perversity, on three bases.  We shall take them in turn.
 
14.	The first basis was one which Mrs Gilchrist rightly pointed out, did not appear in his Notice of Appeal. His submission is that, whereas it is, as he accepted, and was found to be, a term of the Appellant’s contract of employment that he was required to travel at short notice when requested or instructed to do so, it is not necessarily the case that that term is a fundamental term of the contract, or, alternatively, that breach of it is a fundamental breach justifying the employer dismissing forthwith for disobedience of it. The Tribunal did not address the question as to whether elevating the instruction to what we have called “a dismissal instruction” was itself repudiatory. That further leads to be illustrated and expanded by his further point, on the basis of the term found by the Tribunal, that there were circumstances such as “a very specific event keyed to a close member of the family”, which would, in fact, exonerate an employee from the obligation to travel, and there was no finding by the Tribunal as to whether either the fact that it was a sister-in-law’s pre-arranged engagement party on Easter Sunday meant that there was no breach of the term at all, or, alternatively, that it at least might mean that failure to comply with the instruction would not necessarily be a dismissal offence.
 
15.	He submits that by failure to address the question as to whether the dismissal instruction was repudiatory, the Tribunal erred in its approach in law, by concluding that there was no constructive dismissal without reference to that and, indeed, taking for granted that the conduct of the employer was justifiable. That is a matter, which he tells us, was wrong below. It does appear to feature in the originating application by inference, but he accepts is not in his Notice of Appeal and he seeks permission to amend that Notice of Appeal, albeit at this very short notice, to include it.  
 
16.	Mrs Gilchrist, understandably, both opposed the amendment and indicated that she would at least need time to consider how to deal with what is, on its face, plainly an extremely powerful argument, albeit that it is one of law and would not require any further evidence.
 
17.	We are satisfied that this Tribunal must emphasise and enforce the rules which require Notices of Appeal to be put in within 42 days, at risk of being ruled out even if they are one or two days late, by not allowing that to be, inadvertently, and quite obviously unintentionally, circumvented by putting in a Notice of Appeal with grounds 5(a) and (b), and then seeking much later to amend by adding a further ground without any explanation other than (and really this can be read into the position here, because Mr Lefevre was unable to offer any real explanation) that it was only when the matter was finally prepared for the Appeal that this extra ground, not appearing even by implication, as he accepted, in the Notice of Appeal, should be added. 
 
18.	We conclude that although we are satisfied that no prejudice would have been caused to Mrs Gilchrist that a few moments of time to consider would not have cured, it is a matter of importance that, save in exceptional circumstances, amendments to Notices of Appeal should not be allowed out of time, and we do not allow it. The matters to which reference is made, of course, may be of some substance if and when it came to the question of whether the case should be remitted, if the appeal is otherwise successful.
 
19.	The second ground of attack which Mr Lefevre made on behalf of his client related to paragraph 26, which we have recited, and the findings of the Tribunal, in essence, that the use of the abusive language was not intolerable. We use the word “intolerable” because, although there was no express setting out of the decision of the Employment Appeal Tribunal in Palmanor, but simply a reference to it, it is plain that in that case, using coarse, abusive language not as any special kind of legal category but simply as an example of repudiatory breach of the implied term of mutual trust and confidence, the test that was applied, namely, whether the employers’ conduct was so unreasonable that it would be beyond the limits of the contract, was expressly by reference to whether the conduct was tolerable, could reasonably be tolerated by the employee in question.  
 
20.	The basis on which the Tribunal concluded in this case that the conduct was not intolerable appears to have started with reference to the Appellant’s manner in giving evidence, which clearly is always a province in which the views of the Tribunal must be respected; but their reference to his having no particular difficulty in enunciating the swearwords appears to us to be a somewhat strange foundation for a conclusion.
 
21.	Leaving that aside, the basis is twofold:
 
(i)	that he is a 37 year old oil industry executive who has worked offshore and, although not desirable, it is not particularly unusual for such words to be used in the oil industry, and 
 
(ii)	that Mr Debreux, who uttered the words, was French and was not a native speaker of English.
 
22.	We turn to deal with each in turn.
 
23.	First, it is plain that there was no evidence given that it is not particularly unusual for swearwords to be used in the oil industry. It must have come from, what one might call, the experience of an industrial jury, particularly one, Mrs Gilchrist points out, sitting in Aberdeen where the oil industry is such an important part of the local economy, and there is no exception in principle to be taken to the use by the industrial jury of its experience, by way of taking judicial notice. But, in this case, it seems unclear, to us at any rate, what such experience or conclusions as to the industry can have amounted to. It would be perfectly understandable to conclude, without specific evidence or without any evidence, that on oil rigs, in the heat of the moment, swearwords are regularly used. It would be more difficult to accept some kind of custom or practice that swearwords are regularly used in the boardrooms of the oil industry, or necessarily, in the executive offices of those in the higher echelons of the industry, particularly, in the context of giving sensitive and difficult instructions to unhappy and reluctant senior employees.
 
24.	The case Mr Lefevre puts forward in response is double-headed. First, there was no evidence upon which the Tribunal could reach the conclusion it did in this regard and that any drawing on the Tribunal’s experience is, in these particular circumstances, inadequate. But his second basis has even greater substance. Not only, he submits, was there no evidence to support the conclusion the Tribunal reached, but there was evidence to the absolute contrary. This arises from paragraph 5b of his Notice of Appeal, in which there are recited four pieces of evidence, in sub-sub-paragraphs a), b), c) and d), which were, on the basis of the assertion in the Notice of Appeal, given before the Tribunal, and not recorded or referred to at all in the decision.  
 
25.	The normal course in Employment Tribunals in such a situation is for the practice now enshrined in paragraph 7 of the 2002 Practice Direction to be followed. Paragraph 7, is, to a substantial extent, new, but only in the sense that it replaces and renders more flexible the old system that, if it is desired to put before the Appeal Tribunal, evidence not recorded in the decision, the only way in which evidence of that kind can be adduced and/or the finality of the record of evidence in the Tribunal’s decision can be challenged, is by seeking and obtaining Notes of Evidence from the Employment Tribunal Chairman, who will have taken them. That practice has been established for many years, and authority has indicated that, where there are Notes of Evidence which indicate either inconsistency between those Notes and the evidence recorded in the Decision, or a clear absence of evidence in the Decision which plainly was given according to the Notes, in those circumstances the Notes prevailed; but such practice has been regarded as cumbersome and time consuming, and on many occasions has caused many months delay in the hearing of an appeal. The new practice, enshrined in paragraph 7, to which we have referred, provides that a party who seeks to adduce evidence not appearing in the Decision, either that evidence which was given which is not recorded, or, alternatively, in some cases that there was no evidence to a certain effect, is now required to seek agreement from the other side; and if such agreement is obtained, then that agreed position will be accepted by the Employment Appeal Tribunal, and if no such agreement can be reached, in whole or in part, then there is provision for a paper application to the Employment Appeal Tribunal to resolve any dispute and, if necessary, for Notes of Evidence then to be sought.
 
26.	None of that exercise was carried out in this case, but Mr Lefevre makes clear that he did not carry it out for the understandable reason that, in the course of an application, an unsuccessful application, for review, it became apparent that those acting for the Respondent had, very properly and straightforwardly, already almost agreed that the evidence that he wished to seek to put in was, indeed, accurately recorded. Thus although, in substance, paragraph 7 was not complied with, he had every anticipation, which has not been ill-founded, that the same result would, in due course, be reached, and indeed in the event, before us today, Mrs Gilchrist has, on behalf of her client, properly accepted that the four pieces of evidence were given at the Tribunal.
 
27.	We turn then to the substance of them, relevant to the point which we are now addressing. In the first sub-sub-paragraph, a), which is of great significance in those circumstances, it is recorded, and now agreed, that, in cross-examination, Mr Petrie, the Regional Manager of the respondent, and its principal witness, was asked whether there were any circumstances in which it would be acceptable for Mr Debreux to have called the appellant a “fucking cunt” and Mr Petrie’s answer was “No.” In those circumstances, this is the best possible evidence of the unacceptability or intolerability of the addressing by a senior director of such words to a senior subordinate, particularly in the circumstances described, and in the oil industry. According to Mr Petrie, in any circumstances, it is not tolerable or acceptable to use the words that Mr Debreux used. This plainly must have escaped the memory of the Tribunal when it ignored that evidence and, rather, substituted the somewhat unclear evidence or, non-evidence, of its own to which we refer.
 
28.	The second matter to which we refer which founded the basis of the conclusion by the Tribunal, was the question of Mr Debreux being a Frenchman. That in itself seems to us difficult to understand, unless it was being suggested that in some way Mr Debreux, either had no command of English and did not know what he was saying, or was intending to say something different and was misinterpreted. There too, there is evidence, which, it is now accepted, was given by Mr Petrie, in fact, when questioned by one of the members of the Tribunal. When asked by the lay member whether he believed that Mr Debreux would have fully understood the import of the abusive words used, he answered, “Yes”.  
 
29.	In those circumstances, it is plain that the basis upon which the Tribunal concluded that the use of the words was acceptable in the oil industry, and, by implication, acceptable in the circumstances before them, was wholly flawed and, not only was there no evidence upon which it could reach the conclusion, but the entirety of the evidence totally falsified that conclusion. That, of itself would, in our judgment, be sufficient to set aside this decision by the Tribunal.
 
30.	The third ground relied upon by Mr Lefevre, related, however, to the further question arising out of constructive dismissal. In his, as always, helpful summary of the law in Cape Industrial Services Ltd v Mrs P Ambler EAT/0950/01 (unreported, delivered on 20 December 2002), Judge Clark set out the questions for determination in relation to a constructive dismissal case in paragraph 56 of his judgment as follows:-
 
“(1)	What are the relevant term(s) of the contract said to have been breached?
(2)	Are the breaches alleged, or any of them, made out?
(3)	If so, are those breaches or is that breach fundamental?
(4)	If so, did the Appellant resign in response to such breach or breaches?  If so, then she was constructively dismissed.”
 
31.	Judge Clark, of course, rightly indicates that it is only if such constructive dismissal is found that the issue as to whether there was a fair reason for the constructive dismissal arises; and, of course, so often it is the case that once constructive dismissal is found, contrary to a respondent’s contention, it is difficult, if not impossible, for a respondent employer to show that that constructive dismissal was fair. But, as we have already indicated, in this case the Tribunal did not need to get that far, because it concluded that there was no constructive dismissal.
 
32.	Applying these questions to this case, it is apparent that the Tribunal addressed what the relevant terms of the contract were, which were said to have been breached, namely, the implied term of mutual trust and confidence. It concluded that the breach was not made out but, of course, we have already addressed the question as to whether they ought to have done so. They plainly would have found, if they had concluded, as they should, that there was a breach of the implied term of mutual trust and confidence, that the breach was fundamental, because any breach of the implied term of mutual trust and confidence is fundamental.  
 
33.	That would have taken them to the last question, whether the Appellant resigned in response to such a breach or breaches. The question arises as to whether the Tribunal made any finding in that regard. Mrs Gilchrist says that they did. The only place in which it can be said that they did is in the last sentence of paragraph 26, which reads, as we have already recorded as follows:-
 
“In any event, the Appellant was quite clear when giving evidence that the reason he left was that he was not prepared to cancel his private engagement.”
 
34.	The fact that the sentence is prefaced with the words “in any event” may suggest that, in fact, the Tribunal were recording this evidence not by way of a separate finding, but as part of its conclusion, announced in the previous sentence, that the words used did not amount to repudiatory breach of the contract, which is, of course, a separate finding, and one which we have already addressed. That may be the answer because, otherwise, it is odd to find a finding which is not recited as a finding, but, apparently, simply as a setting out of the evidence, which one would normally expect to find as substantiation of a finding, either one just made, or one to come.
 
35.	But Mrs Gilchrist invites us to say that there was implicitly here a finding by reference to the recital of this evidence and, thus, we should read the sentence as if it said:- “The Appellant was quite clear, and we so find, that the reason he left was that he was not prepared to cancel his private engagement.” Assuming, but not deciding, the point in Mrs Gilchrist’s favour in that regard, namely, that there was in those circumstances a finding, if that were to be the case, it is, on any basis, a very limited finding. It is not a finding that he did not leave because of the abusive language, because, and again Mrs Gilchrist accepts this, the sentence would need to be read by yet further amendment, that they were satisfied that the only reason, or the principal reason, that he left, was that he was not prepared to cancel his private engagement, and that, in those circumstances, they were satisfied, if they were, that he did not leave because of his distress at the use of abusive language: notwithstanding that he had not resigned the night before, and had withdrawn his resignation letter and only, and immediately, resigned immediately after the use of the language.  
 
36.	It is here that we return once again to paragraph 5b. of the Notice of Appeal and to the record of evidence, now agreed. It is the subject of sub-sub-paragraph d) of that paragraph to which we refer, and which states:-
 
“On being asked by his solicitor whether it was for both Debreux’s insistence that he went to Saudi and its accompaniment by the abusive words that he had resigned the Appellant responded “Yes”.”
 
Now one only needs to read that sentence in order for it to show that Mr Lefevre’s question was a leading question and, perhaps to that extent, its value would have been, or could have been, discounted by the Tribunal. But the evidence was, nevertheless, given, and, on the face of it, not rejected, and in the sentence at the end of paragraph 26, whether it be finding or not, the reference to the evidence that was given is incomplete. It is right to say that he gave evidence that he resigned because of the refusal to allow him to go to his sister-in-law’s engagement party, although the words used by the Tribunal are somewhat circumspect in that regard, but what they do not go on to say, is that they find it was not also for the reason, which he gave in evidence, that he had just been unacceptably abused.
 
37.	We are satisfied that there is, in fact, no finding in that sentence in paragraph 26, contrary to Mrs Gilchrist’s submission, but that it is indeed the recitation of evidence and, only partial at that, intending to supplement the earlier finding that there was no repudiatory breach of contract.  Accordingly, the Tribunal erred in omitting one important step in deciding whether there was a constructive dismissal, alternatively decided it against the Appellant without considering the point at all. But if they did consider it, and if it had been intended as an implicit finding, then such finding was based on no evidence, or was, as we have indicated, only a partial finding based upon part of the evidence and was, in those circumstances, an impermissible conclusion. In those circumstances, on this ground also, we would have allowed the appeal.
 
38.	We turn then, to consider, in the light of our conclusion that the Tribunal erred, primarily, in relation to its finding, that there was no breach of the implied term of trust and confidence but, also in its finding, or failure to find, in relation to whether the Appellant resigned in response to that breach of mutual trust and confidence, whether to remit the matter to an Employment Tribunal or not. It is the case here that only a small sum by way of compensation is likely to be in issue, given that the Appellant obtained a new job, but, nevertheless, it is always an important question as to whether an employee was unfairly dismissed, and an employer was an unfair dismisser, although we note in this case, and have not previously mentioned, that Mr Debreux did not give any evidence before the Tribunal and, indeed, has now, it seems, left the Respondent company, and clearly any opprobrium which, it is suggested, may attach as a result of the findings, are plainly his, and his alone, not, as is quite clear from the extremely honourable evidence given by Mr Petrie, attaching to the Respondent company itself, though of course, for which they must be vicariously liable.
 
39.	It is always a matter of reluctance for an Appeal Tribunal to send a matter back to an Employment Tribunal to be heard again, some time after it was originally heard, with all the attendant costs and inconvenience that that causes, and, of course, particularly so, where it would be apparent, as in this case, that Mr Debreux would still not be available as a witness.  But we must do so, unless we are satisfied that there is, effectively, only one conclusion to which, on a rehearing, the Tribunal could properly come.  
 
40.	We are so satisfied, and the prime matters which so persuade us are, the pieces of evidence, the subject matter of paragraph 5b in the Notice of Appeal. It appears plain to us that a Tribunal, on a rehearing, would hear and accept the Respondents’ own evidence that this abusive tirade, was, on any basis, and, in any circumstances, unacceptable by the Appellant, and was fully understood by the director who used that tirade and accepted as repudiatory by the Appellant, quite apart from the further question raised by Mr Lefevre which was not, for reasons we have given, able to be pursued by him today, although clearly live on another occasion, as to whether it was even permissible of Mr Debreux to have elevated the instruction to go to Saudi Arabia into a dismissal instruction, particularly in the circumstances of the sister-in-law’s engagement. This, in our judgment, is a case in which no reasonable Tribunal, on a rehearing, would, or could, come to any other conclusion than that there was a constructive dismissal, and, if constructive dismissal, that it was unfair. We propose, therefore, to allow the appeal and substitute the conclusion that there was here unfair constructive dismissal. We are clearly in no position to consider or adjudicate on compensation. We would hope that this could be a matter of agreement, given the likely size of the award, without the need for there to be a further hearing on compensation. If there were to be a further hearing on compensation, it would plainly be appropriate for the matter to be heard by a different Tribunal.