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05/07/2011

M Johnston v. Welsh National Opera Limited

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Employment Appeal Tribunal

An employment tribunal's conclusions on the reasonableness of an employer's dismissal of an employee were flawed because they stemmed from its misconstruction of a collective agreement.
 
The appellant employee (J) appealed against an employment tribunal's decision that the respondent employer (W) had dismissed him fairly. J played in W's orchestra. W was critical of a number of aspects of his performance, including his ensemble playing. It therefore invoked an audition procedure, in accordance with its collective agreement with the Musicians' Union. However, it was not clear whether the procedure provided for an emsemble audition or just a solo audition. J passed the solo audition but when he offered to participate in an ensemble audition, W replied that it would not address its concerns about his playing in a live performance arena or his consistency. Following a disciplinary hearing, it dismissed him on the ground of capability. The tribunal found that as the collective agreement did not provide for the factual situation existing, W had acted within a range of reasonable responses.
 
HELD: The relevant clause in the collective agreement was entitled "poor artistic performance" and it provided that the music for the audition should be taken from the orchestra's current repertoire, except that a prepared solo piece could also be required. Thus, although the collective agreement was silent on the question of whether the audition could involve ensemble playing, it did not exclude it. Moreover, it had to have been the intention of the parties, by the very construction of the mechanism, to provide a means by which all aspects of poor performance could be scrutinised. Accordingly, the construction adopted by the tribunal that ensemble playing was not included in the clause was erroneous. J's case had been that he was entitled to the procedure and that he and W could reach an agreement as to how the procedure could operate in the circumstances. W, however, was saying that it did not need or have to adopt the procedure in ensemble playing. It was saying it in specific terms as to the difficulty of conducting an ensemble audition, and in the general terms that an ensemble audition would be of no utility in terms of consistency. Neither was an answer to the fact that there had been an agreement between W and the trade union incorporated into the contract of employment that that was the procedure that would be adopted. Thus the tribunal's conclusions as to reasonableness were flawed since they stemmed from its misconstruction of the collective agreement as not applying to ensemble playing (see paras 37, 40, 42, 50-53 of judgment).

Appeal allowed.

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