Day 195 - 04 Dec 95 - Page 53


     
     1        show it was not said on their behalf.  It would be most
     2        unsafe for you to adopt that position.  If you are calling
     3        evidence from a witness who says:  "Mr. So-and-so, First
     4        Assistant Manager, said this", it is hearsay.  If you want
     5        to bring yourselves within what I will broadly and,
     6        perhaps, loosely call an exception to the hearsay rule, my
     7        present view is that the burden is upon you to show that
     8        I can safely and fairly treat that as being said by the
     9        Second Assistant, First Assistant, Store Manager or Area
    10        Supervisor on behalf of McDonald's.
    11
    12        Whether I am right about this, whether I will have the same
    13        view, or have a different view when I have heard what you
    14        have to argue, I will put on one side, but I do not want
    15        you to go on conducting the case on the basis that if
    16        Mr. Alimi says a member of management said that, you can
    17        safely assume I will treat that as a statement for or on
    18        behalf of McDonald's.
    19
    20   MR. MORRIS:  Right.  If I can just say, I thought when
    21        Mr. Rampton was making his very long submissions about
    22        Harriet Lamb there was, in fact, a much more broader reason
    23        for making that submission which, I suspected, was this
    24        very point.
    25
    26   MR. JUSTICE BELL:  There is no need to suspect.  I mean, it is a
    27        completely open point and it is a matter which has troubled
    28        me for sometime.  What troubles me more is that when
    29        I brought it out into the open by saying what I did about
    30        the distinction between salaried Managers and Floor
    31        Managers who are not salaried, that was a gross
    32        oversimplification of the position and I do not want you to
    33        be misled by it.
    34
    35   MR. MORRIS:  I think if I can make an initial point, I think the
    36        confusion raised by Mr. Rampton is this admission on behalf
    37        of McDonald's.  Obviously, a binding admission on behalf of
    38        the whole Company is one thing, such as we have had in this
    39        case, we have had formal admissions or, presumably, if a
    40        statement comes from the head of a department it would be
    41        pretty binding on that department, or whatever, but in
    42        terms of evidence, in terms of details about what was
    43        happening at a particular store, it is quite clear that an
    44        Assistant Manager who knows everything that is going on in
    45        the store, is in charge of a shift, saying something that
    46        indicates what his policy is for that shift, i.e. people
    47        not complying would be sent home, or whatever or:  "We do
    48        not want any talk of unions here", it is clear that they do
    49        not want any talk of unions there.  I would not say that we
    50        are necessarily going to mean that is binding on the entire 
    51        Company, but it is still evidence of whatever that person 
    52        would be competent to talk about. 
    53
    54   MR. JUSTICE BELL:  Just pause there a moment, because what
    55        troubles me is that it is, indeed, evidence that the person
    56        said it, but the moment you cross the line and say:  "It is
    57        evidence that what he said was true", then the matter is
    58        more difficult.  I have heard Mr. Rampton's argument on
    59        that.  I must hear what you have to say about it in due
    60        course, because it has thrown itself up at the moment, but

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