Canvas Covers International v Johnson [1992] UKEAT 273_92_1709

EAT
Canvas Covers International v Johnson
[1992] UKEAT 273_92_1709 · 1992-09-17
MR JUSTICE WOOD (PRESIDENT): This case before us is somewhat unusual, there is in the first place an appeal by Mr Morrell, who with his wife is trading under the name of "Canvas Covers International" from an Order of the learned Registrar of this Court refusing him leave to present a Notice of Appeal out of time. The situation was as follows.By an Originating Application dated 12th January 1990, a Mr Johnson complained that he had been unfairly dismissed by his employers. His employers initially were a Company, then that was wound up and a partnership was formed thereafter, but Mr Morrell and his family have been working in North Wales at Prestatyn for many years. The dismissal was alleged to have taken place on the 1st December 1989. There had been a number of postponed hearings, dates fixed and then postponed, where notification had been sent by the Tribunal to Mr Morrell; they had been acknowledged and the dates had been vacated for a number of reasons. Ultimately, a letter, and this had been in dispute at a later stage, dated 4th July 1990, giving a date for the hearing of the 9th August, was sent to Mr Morrell and his Company or the Partnership. There had been, strangely enough, no Notice of Appearance that we are able to discern and at no time prior to the hearing which took place on the 9th August, had Mr Morrell or the employers put forward the case which Mr Morrell now says is the true situation.At the hearing on the 9th August the Respondents did not appear. It is not entirely clear whether a telephone call was given that day but in any event the learned Chairman, who was very experienced, and the Members decided to proceed with the hearing. The hearing therefore took place and the Reasons were promulgated on the 21st August 1990. A number of issues were before the Tribunal, first of all as to continuity of service for the qualifying period of two years, secondly, the question of the unfairness of the dismissal, and thirdly, the question of remedy and quantum. The decision was reached and an award was made of £4,488.The facts surrounding the unfair dismissal fall within a incredibly short compass and were dealt with as follows in paragraph 4 of that initial hearing. It reads thus:"We have only the letters from Mr Morrell alleging that Mr Johnson's work was shabby and shoddy; that he has been incompetent and lazy. Mr Morrell has not been present to give evidence nor to be cross-examined. The circumstances of Mr Johnson's dismissal are, to say the least, amazing. On 1 December he telephoned the company and spoke to Mr Simon Morrell (the son of Peter Morrell) explaining that he had 'flue and would not be in to work. Mr Johnson was told by Mr Simon Morrell that, on his father's instructions, he was sacked. Later that day, having obtained a medical certificate from his doctor, which we have seen, he telephoned and spoke to Mr Peter Morrell. Mr Johnson asked him to re-consider his dismissal. He was met by the reply: "Get stuffed". We have heard Mr Johnson and believe his evidence that he had never been warned about his conduct or about his work. Indeed, he had been promoted. There was a glowing reference given by Mr Morrell in a letter dated 26 October 1988 to the Prestatyn Magistrates. Mr Morrell has said in a letter dated 12 June 1990 ending with the following paragraph:`He will no doubt produce a letter saying what a good worker he was. In my stupidity I felt sorry for Johnson when he was threatened with prison and he begged me to write a character letter for him.'In fact Mr Johnson pleaded not guilty and was found not guilty by the Magistrates. We prefer the evidence of Mr Johnson. We find that there was an unfair dismissal."The essential findings there were that the circumstances which the Tribunal found "amazing", were that when he rang in saying that he had 'flu and would not be in to work, he was told there and then by Simon Morrell that he was sacked. Later that day he had spoken to Mr Peter Morrell and asked him to reconsider saying "he", Mr Johnson, "had a medical certificate" and he was told to "get stuffed" without the certificate being read in any way. They find thirdly, that he had never been warned about his conduct or about his work, indeed, he had been promoted. So whatever the background there, the Tribunal found that on the evidence before them to dismiss Mr Johnson, merely on those facts and without giving him an opportunity of even having his say, was unfair. It would be difficult to fault that finding. This was essentially a finding of fact; there is no suggestion there was any error of law in the direction given to themselves by the Tribunal.On the 24th August 1990, having instructed solicitors, those Solicitors wrote on behalf of the employer asking for a Review on a number of grounds, first, that the Respondents did not receive notice of the proceedings leading to the Decision. Secondly, that the Decision was made in the absence of a party entitled to be heard, and a suggestion that much of what had been said by Mr Johnson was untrue. Thirdly, that the interests of justice required a Review.The Tribunal examined the file at the Industrial Tribunal office, they note that three previous applications of dates had been received, and although the dates had not become effective, they deal with the various contents of letters written by Mr Morrell in connection with the case which deal with continuity of service, but nowhere does the case now put before us appear in any documentation that we can see from the contents of a very long and careful Review Decision which was dated 28th November 1990. In particular because of what Mr Morrell has said to us today we turn to the paragraph dealing with the question of whether or not that letter of the 4th July 1990, giving a date for hearing of the 9th August, had been received. It is clear that Mr Morrell, himself, gave evidence to that Review Hearing, which was a Full Review Hearing with the Industrial Members there as well, I am reading from page 8 of that Decision where the Tribunal say this:
"Having heard Mr Morrell in the witness box, the tribunal have come firmly to the conclusion that his evidence was vague, unreliable and, in some parts, incomprehensible. We do not accept that he did not receive the Notice of Hearing sent on 4 July 1990 for the hearing on 9 August 1990. Therefore, on that ground the application to review fails."
They also dealt with the new evidence and discarded that as a ground and the basic ground of the interest of justice. The Review was refused and the original Decision stood.On the 25th July 1991, Mr Morrell, who had pursued his enquiries on his own, received a letter from a Dr Pritchard indicating that he had not seen Mr Johnson on the 1st December but he saw him on the 5th December. He had provided a sick note which was backdated. So Mr Morrell applied in August 1991 for a second Review and the basis on which he applied for the second Review was that as a result of that letter the evidence of Mr Johnson that he had a medical certificate from his Doctor, which evidence was said to be of the 1st December, must have been untrue, therefore there had been perjury, therefore the whole basis of the Decision given in August 1990 was unsafe and unsatisfactory.The learned Chairman looked once again at the application for the second Review and a Decision was given on the 11th October, promulgated on the 13th November 1991. On that occasion the Industrial Tribunal again sat as a Full Tribunal, with the two Industrial Members, and on that occasion also they had the advantage of seeing and hearing Dr Pritchard who came before them to assist as best he could. The employers were represented by a firm of solicitors, Mr Morrell said it was a clerk and not an admitted solicitor, but no doubt he would not have been asked to attend and represent the employers unless he was competent so to do. He argued the case and the argument was put in this way:
"(1) the applicant had been out drinking on 1 December when he was `off sick' and he should have gone to work; (2) if he had not attended the surgery on 1 December he was not a `witness of truth' and (3) such inaccuracy must throw doubt on his evidence.
whether he attended surgery or not, perhaps is not material, because he might have been sick at home, but the question is whether he was sick on the 1st December?The Tribunal, having heard Dr Pritchard, having heard all the arguments, say this in paragraph 4:
"We take the view that Dr Pritchard's evidence was far from conclusive as to whether or not Mr Johnson was seen at the surgery on 1 December or 5 December. We can readily accept that Dr Pritchard tried his best to recall a visit but that was an impossibility. He has our sympathy for his being put to such trouble. Furthermore, even if Mr Johnson had visited the surgery only on 5 December, what difference would it have made to our decision? In our view absolutely none. It might have thrown some doubt on the applicant's veracity but we accepted his evidence of the circumstances of the dismissal which were such that we would still have reached the decision that the dismissal was unfair. We do not think that the evidence of the medical certificate and the evidence of the doctor are, in any way, material. Therefore the application fails."
The emphasis there is laid on the circumstances of the dismissal, and therefore whether or not the sickness was true was not material because the very way in which the dismissal was handled was sufficient, in the view of the Tribunal, to render the dismissal unfair.That Review Decision should have been sent to the employers, it was not received by Mr Morrell until about the 9th or 10th April and it is right that we have seen a letter from the Industrial Tribunal's office at Cardiff indicating that it has been accepted that there had been an administrative failure and some misunderstanding. They wished their views to be made known to this Court.The Notice of Appeal against the second Review Decision is dated 23rd April which was within a relatively few days of the receipt of the Reasons. As Mr Morrell has pointed out to us, he was told, and would naturally be told, that the time ran from the date of the Decision and his receipt of that Decision. In the circumstances therefore we have thought it right that the time should be extended and we should consider this case as a Preliminary Hearing case. That we did with his consent. The reason which we explained to him was this, that by taking that somewhat unusual course, because normally it would be myself sitting alone dealing with an appeal from the Registrar, we have sought to save time and money for Mr Morrell and this Tribunal has therefore sat throughout as a Full Tribunal. The Industrial Members have in fact given me their assistance not only on the question of allowing an extension of time but of course on the whole basis of the grounds of appeal against the Review Decision. It is clear that we can only help Mr Morrell if in fact, there is an error of law and in particular, only if there is an error of law in the decision against which he is now appealing, namely the second Review Decision.What he now tells us is this, that on the 30th November, the night before, there had been a Company party to launch a new project of some kind, or new premises, at which most members of the staff had attended; that the Applicant, Mr Johnson had got very drunk, he had tried to persuade a number of members of the staff to go off to a nightclub, they had refrained, but he had gone off there and that he had been there until 4 in the morning, that he had had a very thick head the next day, he had been totally drunk; moreover he was a man who in the past had nearly been sacked, he had received a number of warnings, he was highly unsatisfactory and that there was no question of health here at all, he just had a monumental hang-over and indeed was back drinking at the club on the 1st December when he was staying away from work. That was Mr Morrell's case and he felt that he ought to be able to put forward now and the fact that there had been dishonesty, if there had been, over the attendance at the surgery was such that the whole matter should be re-opened.Let us look to see whether there is really any law here because, if it is purely a question of fact we are unable to help Mr Morrell. When an Originating Application is despatched there are instructions about a period for putting in a defence and stating your case. There was no Notice of Appearance that we can find, nor indeed the case now presented to us by Mr Morrell, that that case was ever put on paper or presented in that way to a Tribunal at any stage, let alone before the first hearing. Secondly, there is the finding of fact against him, whether it is the Company or the Partnership, he understands, that there had been that notice given of the 4th July 1990 for the hearing on the 9th, and that is a fact found against him; he was disbelieved at the first Review hearing and indeed all the correspondence and the communications were carefully reviewed in a nine page Decision at that stage. There is no appeal against either of those Decisions. Then he discovers that perhaps Mr Johnson did not attend the surgery of Dr Pritchard on the 1st December but may have done so on the 5th. That matter is then raised at the second Review, Dr Pritchard is heard and the Tribunal say in their Decision of the second Review, a passage of which we have already read, that even if it was untrue that the applicant, Mr Johnson, had attended the surgery on the 1st December, it would not have made any difference because the basic ground upon which they found that this dismissal was unfair was the way in which it had been handled. It seems to us that they were entitled to take that view, they had expressed that in the original hearing and there is no error of law in their second Review.The result, inevitably, must follow that if there is no mistake of law, no error of law, that this Appeal Tribunal has no power to interfere in any way. Mr Morrell feels very strongly indeed that justice may not have been done. All I think we would say to him, and it is not by way of criticism because we cannot help, but if he has got a case to put forward he must put it forward and you must state it and put it forward originally and thereafter, then everyone knows that the case is in writing on paper and everyone knows what it is about. We are sorry that he may feel that he has been hard done by here, but the facts were found against him and we are quite unable to help, so the appeal must be dismissed at this Preliminary Hearing which we have heard by consent.