BPCC Western Bindery Ltd v Matthews [1992] UKEAT 551_92_2311

EAT
BPCC Western Bindery Ltd v Matthews
[1992] UKEAT 551_92_2311 · 1992-11-23
MR JUSTICE WOOD (PRESIDENT): By an Originating Application which is dated 9th December 1991 Mr Troy Matthews alleged that he had been unfairly dismissed by his employers, who are BPCC Western Bindery Limited. He alleged in that Originating Application that he was sacked when a supervisor broke into his locker, removed a firearm out of it when he was not there; he felt that the hearing of his appeal was not a fair hearing and he said that the firearm was not in working order.By a Notice of Appearance the employers set out their case at some length.The allegation was that he was fairly dismissed for an act of gross misconduct, having been found in possession of a firearm on Company premises and leaving that firearm in an open locker.The date of dismissal was 30th October 1991 and it was alleged that on the 1st August 1991 he had been abusive to a colleague and that there had been an earlier disciplinary hearing when he had been told that it was known that he had a gun in his locker and that if the Company ever discovered that he had brought that gun on to the premises again there would be very serious consequences. It was therefore said that the Applicant was alive to the fact that if a gun was found in his locker he was liable to the most severe penalty. The Notice of Appearance then goes on to allege that on Sunday 27th October a shift manager, Mr Whitlock found a firearm in his unlocked locker. This was brought to the attention of the General Manager and on the 28th he, the General Manager, investigated the report by visiting the locker with a Mr Whitlock, the locker was opened and it did contain a firearm. The Applicant was informed, orally and by letter, of a disciplinary hearing which was conducted on the next day, 29th October, and it is to be noted that the Applicant was accompanied by his trade union official from SOGAT and was given every opportunity, it is said, to state his case, which was fairly conducted. He was told of his right to appeal, he did appeal and when the appeal was convened the Applicant on this occasion was accompanied not only by Mr Carter but also by his, the Applicant's, father. The appeal was dismissed. That is the background on the issues, on the pleadings, before the Tribunal.On the 18th May 1992 the Tribunal Chairman made an Order striking out the Originating Application, under Rule 4(4) of the Industrial Tribunals (Rules of Procedure) Regulations 1985, for failure by the Applicant to comply with an Order of the 10th March 1992. That Order was that on or before the 25th March 1992, the Applicant should provide Further and Better Particulars of his case to the Solicitors acting for the employers, and he failed so to do.However, on the 16th June 1992 a hearing took place, as a result of which a decision was promulgated on the 9th July whereby the Order of the 18th May, that is the striking out Order was set aside, and a full hearing ordered.The Company appeal by a Notice of Appeal dated the 7th August 1992. The appeal before us, therefore, is against the Order promulgated on the 9th July 1992 setting aside the Order striking out the Originating Application which was dated 18th May of that year.Thus stated the issues seem to be relatively simple and straightforward, however, that is far from the case, and it is necessary to look at the history of this matter in some detail. The date of the Originating Application and the Notice of Appearance we have already dealt with, that is the 9th December 1991 and the 11th February 1992.On the 18th February 1992 there was a request for the Further and Better Particulars and those Further and Better Particulars are set out in the documentation. There was a failure to comply with that request and as a result the Solicitors for the Company applied to the Industrial Tribunal for an Order. The learned Chairman looked at the request for particulars he disallowed the requests numbered 1, 2, 7 and 8 but he allowed those numbered 3, 4, 5 and 6. The information sought was really comparatively simple, for instance, the date upon which the firearm was discovered in the locker, the nature of the firearm discovered in the locker, the name of the supervisor who it was alleged had broken in to it, and the manner in which it was alleged to have been broken in to. None of that is very difficult, the comment might be made "is it really necessary?" but the Company decided it wanted to tie the Applicant down to a case.The Order was made on the 10th March and there was a further letter of the 10th March dealing with the Preliminary Hearing. The importance of this collateral matter of the Preliminary Hearing and the Application, which was refused, was clearly that the employers felt that there was practically no chance, or little chance of this Application succeeding and they therefore wanted a costs warning to be given to the Applicant. The case was due to be heard on the 31st March but the day before it was taken out due to pressure of time. All those matters are collateral to the main decision before us, but nevertheless, are part of the background.By a letter of the 3rd April 1992 the Company's Solicitors wrote to the Industrial Tribunal indicating that the Further and Better Particulars, as ordered, had not been provided and asked that pursuant to the Rules of the Industrial Tribunals the Originating Application should be struck out.On the 9th April the Tribunal wrote to the Applicant, it was actually to Mr Carter who was representing the Applicant at that time, indicating that they had received the Application, the letter of 3rd April, and giving him a warning pursuant to the proviso to Rule 4(4) of the Industrial Tribunal Rules.Until the 29th April 1992, we take some of these facts from the decision which is appealed against, the situation had been as indicated on the Originating Application, namely, that the Applicant gave his address as 13 Hillside View, Welton and that the representative was named as M C Carter Esq. 18 Hillside Crescent, Midsomer, Norton, Bath, Avon, we understand those houses are about 2 miles apart. He, Mr Carter, was the Father of the Chapel, the Shop Steward of SOGAT who had represented Mr Matthews at the hearings in the disciplinary procedure. The documents had been sent either to Mr Carter or to Mr Carter and to the Applicant, or one with copies to the other, but on the 28th April as appears from paragraph 4 of the decision, Mr Carter rang up the Industrial Tribunal saying not only that he was not representing the Applicant but that he had never represented the Applicant. As a result of that, a letter was sent by the Tribunal to the Applicant, of the 28th April in which they enclosed a number of the documents which had been passing between the Industrial Tribunal and they imagined with Mr Carter or the Applicant.On the 29th April, the Applicant rang the Tribunal, it was a short talk and thereafter the Clerk at the Tribunal telephoned back to the number, which he thought was his, he spoke to a girl friend and explained the position that the Particulars would have to be provided and that the date had been extended as the documents indicate to the 15th May.The new Particulars were served and by a letter of the 15th May the Solicitors acting for the Company asked that the Order should be made striking out, which it was. Having received that Order the Applicant telephoned the Tribunal and as a result of what he said the learned Chairman, by an indication of the 10th June, signed by an Assistant Secretary, indicated that he was going to rehear the Order which he had made of the 18th May, or review it and decide whether it was to stand or not. It was as a result of that decision that the matter came back and was before the learned Chairman on the 16th June. On this occasion the Applicant appeared and also he had produced a letter which had been drafted by his father of the 2nd June in which he asked, on behalf of his son, or I think it was actually written for him and signed by the Applicant himself, it reads as follows:
"I am writing to ask you if my case of unfair dismissal could be reinstated. I am asking this because I thought I was being represented by my former FOC Mr M Carter, he told me he would do so in the presence of an ACAS member.
The first I heard he was not, was when I received a letter to say that the tribunal Chairman had struck out the case. I thought everything was going ahead alright having once been told that Purnells had asked for an adjournment.I would appreciate it very much if you could reinstate his case so that I could get some proper representation as there seems to be rather a mix up over this, due to not being represented as I should have been.

Yours sincerely, T Matthews (signed)"

The learned Chairman treated that Application as an application to set aside the Order as we have already indicated.Then in paragraph 7 and 8 of the decision appealed against he says this:
"7 That letter was treated as an application to set aside the order. The applicant has appeared before us. He has stated that he is not experienced in dealing with legal matters and that he is not really capable of composing a letter. The letter states that he didn't see what further information was required. Indeed on the face of it the information contained in the order is information which would be known to the respondents although I understand that they have their reasons for wanting it from the applicant.
8 If I have a discretion, it seems to me desirable that this case should be decided on its merits and not on a technicality. Having seen and heard the applicant it is apparent to me that he finds it difficult to deal with the complexities of life and what he had thrust upon him on 28 April was a fairly large bundle of papers which required a certain amount of study. As soon as he was fully aware of the seriousness of the situation he contacted the Tribunal he has appeared here today and explained the situation. In so far as I have discretion I think it would be appropriate to recall the order striking out the application on the basis that the applicant supplies now the information which he is required to supply."The learned Chairman then, although not I think, referred to authorities at the hearing, examines the law to see whether he has power to review his interlocutory order, striking out, He seeks to distinguish the case of Casella London Ltd v. Banai [1990] ICR 215 on the basis that in the present case he had not heard both parties initially, but had made the Order on the application of the Respondents alone.Before us, Mr Bowers, takes what is a very simple point and that is that under the rules of the industrial tribunals the learned Chairman had no power to review an interlocutory order.The relevant rules applicable, start with Rule 4(1)(b)(i) which deals with the power to require Further and Better Particulars. Then under Rule 4 there is the power to strike out provided that notice had been sent to the party, who has not complied with the requirement, giving an opportunity to show cause why that should not be done. That was complied with and the Order of the 18th May was made under those Rules. The power to review is under Rule 10 and that power is to review a decision. But, a decision is defined under Regulation 2 of those Regulations as including:
"a declaration, an order (other than an interlocutory order) a recommendation or an award of the tribunal but does not include an opinion given pursuant to a pre-hearing assessment held under Rule 6"
it is therefore clear that an interlocutory order is not a decision within the meaning of those rules and that therefore there is no power to review that interlocutory order. That seems to us clear on the face of the rules. However, we have been referred to a number of other cases which Mr Bowers submits really makes that abundantly clear.The first authority is Spring Grove Services Group plc v. Hickinbottom [1990] ICR 111, that was a decision of this Tribunal which decided precisely that, that a decision did not include an interlocutory order, and, indeed, we cited in that judgment a number of earlier decisions and reviewed them. It is quite clear that on the face of that judgment the Industrial Tribunal had no power to review this decision.The second case was Casella London Ltd v. Banai [1990] ICR 215, in that we again were reviewing the meaning of the word "decision" and held again that there was no power to review but we had great sympathy, as we have in this case, with the problems facing the chairmen of industrial tribunals and we did at the end of that case of Casella say this:
"However, before leaving this case it is clear from a reading of all the authorities that there are likely to be cases where rather than leaving order to be appealed, it is preferable for the tribunal to be able of its own motion to review it. This would apply equally to interlocutory or final orders. No doubt those responsible for amendments to the Regulations would be able to bear this in mind."
The most recent occasion when we have reviewed our own rights to recall or review a decision of our own is the case of Blockleys plc v. Mr D D Miller , (EAT/644/88) of which we have the transcript. The judgment was delivered on the 30th July 1992 and we understand that it will be the subject of an appeal to the Court of Appeal, but in that we reviewed the earlier cases and came to the conclusion that the occasions on which this Appeal Tribunal could review its own decisions were very limited as set out in that judgment.The real nub of the problem is indicated in a short passage from the judgment in Spring Grove where we said:
"It is said in argument that what was happening was that the tribunal were exercising their power of recall, or that the hearing of 20 April constituted a review. At this juncture, there are three principles of law which become relevant. First, that there should be an end to litigation and the parties should not be allowed or encouraged to re-open matters. Secondly, the judgment should be final even though there is a right of appeal; and thirdly, that no court can sit on appeal from its own decision."
The first issue before us therefore, is whether, in law, the learned Chairman could have brought that case back before him. It seems to us on the basis of a reading of the Rules and of those authorities that he had no power so to do. He may very well, as indeed he did feel, that there was room for misunderstanding in this case, as is indicated from the decision, but we are reluctantly brought to the conclusion that there is no power in him to review the interlocutory order of the 18th May 1992.During the submissions before us from Mr Bowers and from Mr Matthews, in person, it did occur to us that justice demanded that we should consider the possibility of an appeal against the original Order of the 18th May. It is to be noted from the dates which we have given that the original interlocutory decision was dated the 18th May, promulgated on the 19th May 1992, and therefore the time for appeal, 42 days from that, would have included the hearing of the subsequent hearing on the 16th June. Therefore, on the 16th June if the Applicant had been advised to appeal he could still have launched his appeal within the 42 days. We therefore, in order that the procedural aspects should be properly carried out, ask Mr Matthews whether he wished to appeal against the Order of May and for an extension of time. He indicated that he did. We therefore, are now, in a position to consider whether we should extend the time for appeal against that decision.We remind ourselves first of all that it is only in exceptional cases that this Tribunal will extend time, in fact we are so strict, as indeed are industrial tribunals, that one or two days can make a difference and that is clearly set out in the authorities. We were also in possession of the explanation which was given to us by Mr Matthew. What he had to tell us was that he thought that Mr Carter was representing him throughout; that when he received any documents in a buff envelope during the various procedures, and there were obviously, as we have already indicated, a substantial number of documents, he simply took them round to Mr Carter, who lived two miles away, and popped through his front door. That is an explanation of how it was, that it was not until the letter was received, which was sent to him on the 28th April that he knew that Mr Carter was no longer representing him. However, it does not explain to us quite why that letter was not also popped into Mr Carter's letter box. Perhaps the explanation is that Mr Matthews was away and the letter was opened by his girl friend. Mr Matthews tells us that he was fishing in Cornwall, from the middle of April until the 18th May and it was not until the 19th May that he got back from Cornwall and received the Order striking out his application and it was not therefore until some fortnight after that on the 2nd June that his father was able to help him to write out the letter indicating that he wished to be heard.The merits of this case are relevant to our consideration. It is to be noted that the employers asked for a preliminary hearing. It is also to be noted that both his father and the SOGAT Shop Steward, trade union official were representing him during the disciplinary process. We note also that the story set out in the letter of the 2nd June does not contain the sequence of events which had been placed before us by Mr Matthews, and we look also at the various pleadings and the request for particulars to see whether there is in our judgment any merits to this case. It is in a situation like this that the views and experience of the Industrial Members are of the greatest assistance to a judge sitting between them. It is the view of those Industrial Members sitting with me that really there is practically no merit whatsoever in the case should the facts be even remotely similar to what is clearly put forward as the case. Having read the documents myself, I accept their views on this. Therefore in exercising our discretion we must look at the fact that Mr Matthews was in a position to receive advice for a substantial period of time, that he had only to ask Mr Carter or his father about questions of appeals or something of that nature and that it was open to him to appeal to this Court within that period of time. However, when balancing the merits of the case against all the other facts here we have reached the conclusion that we should not exercise our discretion to enlarge the time for appeal on this case and therefore we shall refuse leave to appeal out of time.The result therefore of this hearing is one, that the appeal is allowed and the Order promulgated on the 9th July is set aside with the consequence that the Order of the 18th May stands and that the application for leave to appeal out of time is refused.