Goomany v Degnan [1991] UKEAT 260_91_0212

EAT
Goomany v Degnan
[1991] UKEAT 260_91_0212 · 1991-12-02
MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated the 10th December 1990 Mrs Degnan alleged that she had been unfairly dismissed and named as the Respondent Mr Goomany. She set out in her Originating Application that her employment had begun on the 1st June 1987 and had terminated on the 29th November 1990, there is no doubt about the latter date.When he received the Originating Application Mr Goomany instructed a solicitor. A Notice of Appearance which is dated the 10th January of this year 1991 was filed and in that it suggested that employment had started on the 16th October 1989.The hearing was arranged for the 28th February 1991 before an Industrial Tribunal sitting at Leeds under the Chairmanship of Mr Morrish. On that occasion the Applicant was represented by an officer from her Trade Union, the Respondent did not appear. The Tribunal deal with that matter in paragraph 2 of the Decision that reads as follows:
"The respondent has not attended. After allowing time for the respondent to attend after the time appointed an approach was made to him by telephone, when he protested that he had not received notice of hearing and did not know it was to take place today. We do not accept that, since the applicant has told us quite clearly that in the last week or two she has had a telephone conversation with him, during which he made reference to the fact that the hearing was to take place today. Notice in fact had been sent to the respondent's solicitor. A telephone call was made to that office today. The solicitor was out, but it is quite clear that he was not then on his way to Leeds. The case has therefore been heard in the absence of the respondent."
Having heard the evidence and considered the matter the Tribunal found that Mrs Degnan had been unfairly dismissed and they found compensation in her favour of £4,279.29.Mr Goomany appeals by a Notice of Appeal of the 17th May of this year and the matter now comes before us by way of a Preliminary Hearing. Mr Harbottle of Counsel appears on behalf of the Appellant and we are grateful to him for the way in which he has clearly put his client's case.The first, and the major point taken is that it was wrong of the Tribunal to fail to adjourn the Hearing and to have reached a Decision on the 28th February 1991. It is said that it was wrong first to accept the Applicant's evidence without the Respondent being called. Secondly, that the Tribunal did not state in their Reasons exactly what was said to Mr Goomany during the phone call to which they refer. Thirdly, that there was no evidence that Mr Goomany had been asked to attend. Fourthly, there was no evidence that he was told that if he did not attend a decision might be made in his absence and lastly, that he was left with the impression that there was no need for him to attend and in fact he was not very far away from Leeds, he was at Bradford.We note that there was no application after this case for a Review. There is no suggestion that a letter was written immediately after this explaining the whole situation and that could well have been done.It is sought to produce fresh evidence. On the principles of Ladd v. Marshall that fresh evidence adduced would have to fall within those rules and there is no affidavit before us today. In particular there is no affidavit or indication from the Solicitor instructing Mr Harbottle that he had received no notice of this Hearing and moreover we cannot fail but to notice that he is not in attendance today.Taking those matters into account it seems to us that this Tribunal could not be criticised for reaching a decision on the evidence that was available to it at the time and deciding to go ahead with the Hearing. Careful investigation must have taken place and no doubt there is a bundle of documents and letters on the file of the Industrial Tribunal which was available for the learned Chairman and the Members of the Tribunal to see and therefore we do not think that that was in any way a wrong exercise of the discretion to continue the hearing. If that is right then of course all the matters raised as being part of the merits of the Hearing are of no moment.There is, however, a further point taken which is more serious, that is that had the Tribunal looked at the evidence correctly it was open to it to decide that it had no jurisdiction in that the Applicant did not have the required two years service upon which to base her claim.The first point to raise is that it is clear on the pleadings that there was a variation between the date of the start of the employment given by the Applicant, which we have already referred, namely the 1st June 1987 and the date given by the Respondent, the 16th October 1989, that be it noted is a different date from the one put forward very carefully and no doubt accurately by Mr Harbottle as the 30th November. However, the matter must have been before the Tribunal and in their minds because when dealing with compensation they calculate the basic claim on five years continuous employment and for them to have done that they must have had evidence upon which they could reach that conclusion, which is a longer period than originally suggested by the Applicant herself. We also note that in paragraph 5 of the Decision the Tribunal say, after hearing evidence on oath:
"We are satisfied that after working for the respondent and partners at a residential home called Acacia Lodge in Leeds she was moved by the respondent to Sherrington House Bradford ...."
Therefore it seems to us that the Tribunal clearly had that point in mind and that in fact, it was never raised by the Solicitor for the Respondent either expressly in the Notice of Appearance nor indeed by correspondence between that date in January 1991 and the date of the Hearing five weeks later in the February.It follows therefore we can find no error here in the Decision and the Appeal must be dismissed at this juncture, which it is.