An orchestra had unfairly dismissed its principal oboeist on the basis of poor performance where it had failed to carry out the audition process specified in a collective agreement between the orchestra and the Musicians' Union and had instead adopted a standard disciplinary procedure never intended for musicians.
The appellant employer (W) appealed against a decision (Johnston v Welsh National Opera Ltd (2011) EAT that the respondent employee (J) had been unfairly dismissed.
J had been principal oboeist in W's orchestra. Difficulties in the relationship between J and W's music director took the form of criticism of J's musical performance in three aspects of his playing: intonation, emission of sound and the blending of sound. The first two concerned the relationship between the musician and his instrument, and the third the relationship between the sound produced by a particular musician and the sound produced by the rest of the orchestra. A collective agreement between W and the Musicians' Union provided under para.1.17.1 for a procedure whereby poor performance could be assessed in "audition". J attended an audition carried out with a piano accompaniment at which he satisfied the assessors, including W's music director, in relation to intonation and emission of sound. Thereafter, criticism was substantially confined to the blending of sound. The audition procedure was considered by W to be inapplicable to that type of perceived shortcoming. It therefore dealt with the issue not under the poor artistic performance procedure under the collective agreement but through a disciplinary procedure set out in its company handbook, even though the handbook stated, under its provisions for poor performance, that "this section does not apply to Musicians, who should refer to the WNO/MU House Agreement". Following a disciplinary hearing in September 2008, J was dismissed. His internal appeal against that decision was unsuccessful and J issued a claim for unfair dismissal. The employment tribunal, having found that ensemble playing was excluded from the audition process in the collective agreement, concluded that W had acted within a range of reasonable responses so that J's dismissal had been substantively and procedurally fair. J appealed. The Employment Appeal Tribunal held that that the tribunal had fallen into legal error by finding that, as a matter of construction, ensemble playing was not included in the collective agreement. It could see no basis on which the audition procedure could be construed as not embracing all aspects of artistic performance and concluded that an allegation of below standard ensemble playing was simply another aspect of "poor artistic performance" which attracted the audition procedure under the agreement, modified as required by the circumstances. The EAT therefore allowed J's appeal and remitted the matter to a differently constituted tribunal for rehearing.
W contended that the tribunal's decision contained no legal error and that there was no basis for the EAT to interfere with it.
HELD: It was absolutely clear that the disciplinary procedure set out in W's company handbook did not apply to poor performance by musicians. The words "this section does not apply to Musicians, who should refer to the WNO/MU House Agreement" were unequivocal. The fundamental question was whether, as the tribunal had found, para.1.17.1 of the collective agreement, as a matter of construction, excluded below standard ensemble playing from its audition procedure. It did not. In relation to matters such as intonation and emission of sound, one would expect that the assessment might best be carried out with the musician playing solo or with piano accompaniment. However, para.1.17.1 did not confine the audition or assessment to such circumstances. It would not have been appropriate for the procedure to be too prescriptive. What was important was to arrange a suitable audition for the particular perceived problem. Concerns about ensemble playing required the musician to be assessed in ensemble, either in audition conditions or, perhaps, in rehearsal and/or performance, with the audition panel concentrating on the musician in question. That might call for a modification of the para.1.17.1 procedure to meet the circumstances of the case, but it would retain the protection against subjectivity which the musicians were granted by the poor performance procedure. That accorded with the intentions of the parties, objectively determined, having regard to the text of the collective agreement. In effect, the parties to that agreement had decided that a fair procedure in relation to below standard artistic performance required that objective element. The EAT had, accordingly, been entitled to find that it was a legal error for the tribunal to exclude concerns about ensemble playing from para.1.17.1. To subject J to the handbook disciplinary procedure was procedurally unfair and not a reasonable response on W's part to the problem that had arisen. The case would be remitted to the tribunal solely for a remedies hearing since a finding of procedural unfairness was inevitable (see paras 12-16 of judgment).
 EWCA Civ 1046
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