Appeal No. EAT/48/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 10 July 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC

	MISS J W COLLERSON

	MS P SMITH

MISS MAYER-KUSTERER	APPELLANT

TONY & OSSIE RIZZO	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR THOMAS KIBLING
	(FREE REPRESENTATION
	UNIT)
Central London Law Centre
2nd Floor
47/49 Charing Cross Road
LONDON
WC2H OAN

For the Respondents	NO APPEARANCE BY OR 	ON BEHALF OF 	RESPONDENTS 

	MR JUSTICE WOOD (PRESIDENT):  This is an Appeal by Miss Mayer-Kusterer from a Decision of an Industrial Tribunal sitting in London (South) of the 24th October of 1989 whereby it decided that they could not give any remedy to the Applicant under the Wages Act because the contract under which she was claiming was illegal.

	Her employers the Respondents, to the proceedings, were Tony and Ossie Rizzo, who were trading as "Sanrizz".  They have a number of hairdressing establishments in the West End of London and the Applicant was a skilled hairdresser.  She worked with them for a time, then left them to go elsewhere and claimed that she had not been paid her full emoluments.  Amongst those emoluments, on top of the basic pay, was £10 each week in cash for particular services supervising certain cleaning.

	The point taken by the Tribunal, - as it had to be taken by the Tribunal, - was that because of the unusual way that this was paid, and indeed perhaps the somewhat unusual form in which the letter making the claim had been phrased, that those £10s were being paid, what one would say, "on the side" or in colloquialism as "a fiddle" on which tax would not be paid.  It so happened that prior to the Hearing before the Industrial Tribunal the Applicant had in fact been in touch, and had in fact visited the Inspector of Taxes at the London Enquiry Office in Victoria Street.  She had done that in November 1989 and received a reply from the Inland Revenue of the 12th February 1990 indicating that her tax affairs were in order that there was no illegality and that tax had been paid on all the emoluments that she had received.  We are told by Mr Kibling that that included the item of £10 to which we have already referred.

	Miss Mayer-Kusterer, although she had been in this country for some 8 years, came from abroad and was presenting her own case.  She may have been a little flustered and may not have done herself justice.

	There was an application for Review but yet again these documents were not placed in front of the Tribunal and so her case was not fully aired.  We feel in the circumstances that it should be fully aired and this matter considered from the background of the Inland Revenue documentation and her evidence about her visit to the Inland Revenue.  As that was a vital matter which was not in front of the Industrial Tribunal the Tribunal was acting without all the relevant evidence and in the circumstances its Decision must be considered flawed.

	What then is the appropriate course to take.  The Respondents do not seem to have appeared on any occasion and are not before us today.  The appropriate Order which we think should be made is that this matter should be reheard before a different Tribunal who can start looking at the matter from the beginning.  No doubt the Applicant can be represented in front of that Tribunal by Mr Kibling from the Free Representation Unit who appeared before us today.  So we allow the Appeal.  We return these documents and they can be copied and put before the Tribunal.