Alexander v Treasury Solicitor [1992] UKEAT 587_90_2506

EAT
Alexander v Treasury Solicitor
[1992] UKEAT 587_90_2506 · 1992-06-25
MR JUSTICE KNOX: This is the inter partes hearing of an appeal by Mr Bruce Bertin Wilson Alexander against a decision given by the Chairman of the Industrial Tribunal on 18th September 1990 and sent to the parties on 26th September of that year, that Mr Alexander's originating application be struck out on the grounds that it is frivolous or vexatious. That is a power that is conferred on an Industrial Tribunal by Rule 12(2)(e) of the Industrial Tribunals (Rules of Procedure) Regulations 1985 and it is one of those powers which a Chairman sitting alone has jurisdiction to exercise.There were in fact treated as being before the Industrial Tribunal two consolidated originating applications. The first one was both dated and presented on 27th October 1989 and although Mr Alexander failed to fill in the box for giving the dates of employment, and therefore did not identify the date at which his employment ceased, it is fairly clear that what was being complained of was unfair dismissal. The box which provides for the type of complaint to be identified reads:

"RIGHT NOT TO BE DISMISSED ON TRANSFER OF UNDERTAKING"

- there then follows a word which is probably "tort"

"(PE)R81 AND OTHER GROUNDS"

The box which enables the applicant to give full details of his complaint contains the following:
"TORT (FURTHER AND BETTER PARTICULARS WILL BE FORWARDED IF NECESSARY AFTER APPEAL TO CIVIL SERVICE BOARD WHICH THE COURT WILL WANT TO BE DETERMINED FIRST)"
That was the first originating application.There was a subsequent one, or what was treated as one, in a two page document which was dated as of 19th January 1990 and I do not propose to read the whole of it but it put forward, it would appear, a claim regarding dismissal arising under the law of contract. Also there is a document before us headed "SECOND ORIGINATING APPLICATION TO TRIBUNAL (UNDER LAW OF CONTRACT)" which is in two pages. It contains amongst other materials the claim that:
"IT IS FOR THE EMPLOYER to show the reason, ........
THE BURDEN OF PROOF is upon the employers to show the facts in issue upon which he relies.AND THE ONUS is upon the Employer to satisfy the Tribunal (having regard to equity and the substantial merits of the case) that he acted reasonably in treating it as a sufficient reason for dismissing me AT PLEASURE and thereafter adequately dealt with my Application for the purpose of seeking redress of grievance."The answer came in the name of the Treasury Solicitor whom Mr Alexander joined as respondent but we are told, and there seems to be no reason to doubt it, that in fact Mr Alexander's employer was the Department of Trade & Industry. It stated that Mr Alexander had been dismissed, that it was intended to resist his application and that the grounds on which it intended to resist the application were:
"1. The Applicant has repeatedly failed to attend at his place of work. In addition he has failed to adequately carry out the work assigned to him.
2. The Applicant was given repeated warnings both orally and in writing about his regular unauthorised absences and concerning his unacceptable standard of work.3. It is denied that the dismissal was unfair."The two originating applications were consolidated and the Industrial Tribunal agreed not to permit the matter to go forward until the decision of the Civil Service Appeal Board became known. That, in fact, did become known in the sense that it was given on the 13th March 1990 and the decision was that the dismissal was not unfair.It took some four months for the Treasury Solicitor to notify the Industrial Tribunal that this was the decision of the Civil Service Appeal Board and the Chairman of the Industrial Tribunal, when that news came through, directed that it would be appropriate to give the parties an opportunity to address the Tribunal on the question whether or not the originating applications now consolidated, should be struck out as frivolous or vexatious under Rule 12(2)(e). Notice was duly given to the parties for such a hearing and the hearing occurred on the 18th September 1990 and it is from the Order that was made as a result of that hearing that this appeal was brought.The hearing was not attended by Mr Alexander: it was attended on behalf of the Treasury Solicitor. The Industrial Chairman went through the documentation in some significant detail and also documents that were submitted from time to time by Mr Alexander in, it is to be assumed, explanation of what his case was about. The Chairman took up a reference which had been made by Mr Alexander in a document which he had apparently served that day on the Industrial Tribunal, to the authority of E.T. Marler Limited v Robertson 1974 ICR 72 which deals with orders for costs where applications are either frivolous, vexatious or both. He pointed out that the Industrial Tribunals are creatures of statute and only have those powers which the statute confers and have no power to determine questions of tort and a limited power to deal with matters of contract.His conclusion is to be found in the last sentence of the penultimate paragraph and it reads as follows:
"Taking into account all the foregoing matters, and particularly the documents which have been provided by the Applicant from time, not least in respect of this particular hearing, it is clear to me that this is an application which can correctly be termed frivolous and/or vexatious for the purpose of rule 12(2)(e) of the 1985 Rules, and therefore is one which ought to be dismissed at this stage instead of being allowed to take up the time of a complete Tribunal."
In the second of the two paragraphs numbered "4" in that decision the Chairman had referred to the notification of the Civil Service Appeal Board's determination and his direction that there should then be the hearing which was then being conducted.The appeal came forward under the practice that is established in this Tribunal for consideration on an ex parte basis to see whether it should proceed to a full hearing. It so happens that I was a member of that Tribunal and the Order that was made on that occasion, again Mr Alexander not attending and not being represented, was that the appeal should be allowed to proceed to a full hearing limited to the following question, namely, whether it was correct in law to strike out the originating application in so far as it claims relief for unfair dismissal on the grounds that it was frivolous and vexatious on the basis of a determination by the Civil Service Appeal Board that the Appellant's dismissal was fair. Leave was granted to amend the notice of appeal which did not raise that point within 28 days: no such amendment has been made.The basis upon which that leave to go forward for a full appeal was made, as appears from the face of the order, was that it was considered arguable that the Industrial Tribunal Chairman's decision was that simply because the Civil Service Appeal Board had decided that the dismissal was not unfair, the claim for unfair dismissal must fail. That would be an erroneous view in law and we thought that it was appropriate for Mr Alexander, if so minded, to be given the opportunity of urging that as a ground of appeal against the decision. He has not availed himself of that opportunity and there may be excellent reasons for his not doing so but we do not see that this Tribunal either can or should proceed with that field of enquiry any further - Mr Alexander having been given a full opportunity of taking the point.So far as the actual notice of appeal against the Industrial Tribunal's decision to strike out is concerned, as appears from the Order on the ex parte hearing, this Tribunal on that occasion was not impressed with any of the reasons that were advanced. As with many of the documents that Mr Alexander has produced over the years that have gone by since these matters occurred, it is extremely difficult to see exactly what it is that he is urging as a point of law. On that occasion this Tribunal went through the grounds with some care to see if an arguable point was discernible and failed to do so. We have not had any greater success on this occasion although on this occasion we have had the assistance of Miss Foster on behalf of the Treasury Solicitor. On the previous occasion no-one attended at all. As before, Mr Alexander has neither appeared nor been represented before us.The submission that is made to us on behalf of the Treasury Solicitor is first of all that the identity of the respondent cannot help the applicant - and appellant. He has it would appear very probably got the wrong respondent but that is not a point that can possibly help him. Secondly, that Industrial Tribunal interlocutory decisions have to be dealt with in this Tribunal on the same basis as their final decisions and that means that the Industrial Tribunal being a final arbiter of questions of fact but not of law, for this Tribunal to interfere in such a decision as this on an interlocutory matter, it has to be satisfied either that the Industrial Tribunal has made an error of law or that its decision can be described as perverse in the sense that no reasonable Industrial Tribunal properly directing itself could have come to the conclusion that it did.In our view this decision which is under appeal does not reveal either of those two grounds upon which this Tribunal could interfere. True it is that the decision does not in terms state exactly why the application can be termed frivolous and/or vexatious. On the other hand that is very probably a function of the difficulty of ascertaining what it is that the application was based upon. We have had what I suspect was the same difficulty as the Chairman of the Industrial Tribunal, namely, a very great difficulty in understanding precisely what the basis of the application is, beyond an appreciation that it was for unfair dismissal.In those circumstances and Mr Alexander having declined to take up the one point that we thought was potentially arguable we see no basis upon which we should interfere with the decision of the Chairman of the Industrial Tribunal and this appeal will therefore be dismissed.