- This appeal under s135 of the Employment Contracts Act 1991 is against the decision of the Employment Court allowing Mr Lincoln's
appeal from the Employment Tribunal and holding that Mr Lincoln's summary dismissal by his employer, Anchor Products Limited ("Anchor"),
for serious misconduct was unjustifiable.Anchor contends that the decision of the Employment Court was erroneous in point of law
within the meaning of s135.The decision of the Employment Court is now reported at [1999] 3 ERNZ 232.Accordingly, it is unnecessary
for present purposes to review the facts of the case and we turn at once to the ground of appeal.
- The argument for the appellant, Anchor, is that the Employment Court erred in its approach to the appeal from the Employment Tribunal,
contrary to the principles laid down by this court in Glovers Food Processors Ltd v Leasosavaii [1999] ERNZ 478 and in that regard that it erred in various specific respects.While, as Mr Towner emphasised, the Employment Court Judge referred
to an earlier Employment Court decision concerning the approach to appeals to that court and which Mr Towner criticised, the Judge
immediately went on to say that the considerations referred to in that case must however conform to the recent judgment of this court
in Glovers, which he then summarised in this way:
The Court of Appeal pointed out that this Court's role is primarily to deal with legal issues and although it will be entitled to
differ from the Tribunal's findings of fact, it should be reluctant to do so when these turn on credibility and on the advantage
the Tribunal had on seeing and hearing witnesses in person.The Court of Appeal has accepted that the Employment Court is not entitled
to interfere with a finding of fact made by the Tribunal unless that can be shown to have been wrong.The judgment in Glovers requires the Employment Court to be conscious of the requirements and limitations of its appellate role.The Employment Court is not
to dismiss the Tribunal's decision without considering its findings of fact and the evidence supporting those and this Court must
not substitute a series of comments and conclusions of its own.At paragraph [28] the Court of Appeal held:
In determining the personal grievance claims the Employment Tribunal's responsibility was to enquire into the investigation undertaken
in a potentially serious misconduct situation and into the reasonableness of the decision which the company reached to dismiss the
employees.
- The Judge concluded that introductory part of the judgment recording that he intended to follow that course in determining the appeal.Then
after a careful and comprehensive review of the factual material, of the decision of the Employment Tribunal and of the arguments
of counsel he concluded for the reasons which he had set out that the Employment Tribunal erred in finding the dismissal to have
been justified and continued:
I have borne in mind, as the Court of Appeal has recently re-affirmed in the Glovers case, the necessity of the importance of the Tribunal's decision, particularly of credibility issues arising from the starkly contrary
accounts of Messrs Lincoln and Harding about what happened in the Betavac room.I have nevertheless concluded that, when all the relevant
evidence is considered and given proper weight, the Tribunal ought not to have come to the decision it did about the fairness and
reasonableness of the employer's conclusions which led to Mr Lincoln's dismissal.
Although conscious of the restraints upon an appellate court in reaching a different view on the facts from the Tribunal at first
instance, I have concluded that the discrepancies and errors are, together, so substantial that the case must be determined differently
than it was by the Adjudicator.I am not satisfied, for all the reasons set out above, that Mr Lincoln was justifiably dismissed,
that is that his summary dismissal was fair and reasonable.The Tribunal's decision to this effect is therefore set aside and a finding
of unjustified dismissal substituted for it.
- Mr Towner for the appellant submitted that, notwithstanding its references to Glovers the Employment Court took an unduly broad approach to its appellate role.He said that the court overlooked the requirements and limitations
of its appellate role.It effectively engaged in a general retrial of all the important factual issues which were before the Employment
Tribunal.It substituted its own comparisons and criticisms of the witnesses and its own view of the probabilities of the case for
those of the Tribunal.It did not make a proper allowance for the advantage which the Employment Tribunal had in having the witnesses
before it in person.
- Following his review of the Employment Court's assessment of the facts Mr Towner submitted that no court properly observing those
requirements and those limits on its appellate role as identified in Glovers could have reached the decision the Employment Court did in this case;and had a correct approach been followed the Employment Court
must inevitably have upheld the Employment Tribunal.
- That test, which we accept for present purposes, imposes a substantial burden on an appellant seeking to overcome a decision of the
Employment Court in such a case as the present.Having considered everything that Mr Towner has said, we are not persuaded that the
Employment Court took an erroneous approach in law to its task.In the crucial passages in the judgment of the Employment Court the
court was determining how the material before the Tribunal, much of it documentary material in the form of notes and statements,
and the way in which that material was expressed and developed over time, should be interpreted.In the end we are satisfied that
it was open to the Employment Court in the discharge of its appellate function to come to the view that the Employment Tribunal for
its part was plainly wrong in concluding that Anchor was entitled to reach the belief that Mr Lincoln was guilty of serious misconduct.In
the result we are not persuaded that the Employment Court failed to apply the principles laid down in Glovers and that it erred in law in its approach to the appeal from the Employment Tribunal and in its conclusion that dismissal was not
substantively justifiable.
- For these brief reasons the appeal is dismissed and the matter is remitted to the Employment Court.
- The respondent is entitled to costs which are fixed at $5,000 together with any disbursements including any travel and accommodation
expenses of counsel as fixed, if necessary, by the Registrar.
