Dixon v T D Bridger Ltd [1992] UKEAT 664_91_1802

EAT

Dixon v T D Bridger Ltd

[1992] UKEAT 664_91_1802 · 1992-02-18

MR JUSTICE WOOD (PRESIDENT): This is an appeal by Mr Dixon from a decision of the learned Deputy Registrar of the 24th December 1991 refusing him an extension of time within which to appeal to this Court from a Decision of an Industrial Tribunal sitting at Bedford under the learned Chairman Mr Drysdale.

The hearing was on the 20th August 1991, the Decision was promulgated on the 4th September.

With the written Decision is sent forms called IT9, in which it is made quite clear that time for appeal is 42 days. Mr Dixon received that Decision and received those forms and was aware of that time limit of 42 days.

The Notice of Appeal was dated 23rd November 1991 and is therefore out of time by a considerable period.

The learned Registrar considered letters from Mr Dixon, including a letter of the 16th December and he explains that he was suffering from "Iritis" and that that was the reason, amongst other things, for the delay. So that the question here is whether there was a reasonable excuse for the delay in filing the Notice of Appeal.

In exercise of a discretion of this type the learned Registrar, and indeed I, re-hearing this matter are entitled, and indeed should look at the merits of the case and the possible merits of any appeal.

The application by Mr Dixon was on the grounds of unfair dismissal by his employers T D Bridger Limited. The Tribunal found against him.

He had been engaged from April 1971 with that Company until his employment was terminated on the 7th January 1991. The Company are involved in design and manufacture of packaging. From the very beginning Mr Dixon was not a good time-keeper. There is a Contract of Employment dated 23rd November 1983 which set out Mr Dixon's position, which was as a sample maker and he was required to work from 8 am to 5 pm on Monday to Thursday and 8 am to 1.30 pm on Friday. The trouble was deep rooted. He had received a first written warning in March 1980 about timing. There was a second on the 28th November 1984 a third on 27th October 1986 and a further written warning in February 1990. There was indeed, a fifth warning on the 20th March 1990 and there was an indication then that if it did not improve the result was inevitable, although reluctant, and he would have to be dismissed. Mr Dixon suffers from severe ankylosing spondylitis and it is clear that he suffers considerably from this, as is evident today to me in Court. However, there was really very little improvement in the situation and the time came when he was dismissed for his lateness in turning up in the mornings.

There was an issue about the Contract of Employment and exactly what the details were. The Tribunal looked at it, they examined every point taken by Mr Dixon, they heard Mr Bridger and the conclusion reached is to be found at the end of paragraph 8 where the Tribunal say:

"We are unanimously of the view that this arrangement was not one which, expressly or impliedly, gave Mr Dixon any right to start work at the respondents' premises any later than the time he was required to do so by his contract of employment, this being, at first, 8.00 am, and afterwards, for Mr Dixon's own convenience, 9.00 am. If Mr Dixon was in any doubt at all about this, the position was made entirely clear to him by the letters of the 7th February 1990 and 20 March 1990"

They go on to say that they had examined the Contract and they say this too, in paragraph 9:

"Mr Dixon was repeatedly asked by the tribunal to tell the tribunal why, in these circumstances, he still maintained that his dismissal was unfair. The tribunal were unable to obtain any relevant or coherent answer to these questions. Accordingly the hearing was adjourned on the understanding that this application would be dismissed.

The tribunal considers that, at any rate towards the latter end of this hearing, Mr Dixon has acted unreasonably in his conduct of the case. Indeed his conduct has constituted an abuse of the proceedings. However, the respondents have not asked for any order as to costs."

The Notice of Appeal indicates that Mr Dixon, his first ground was that he was not believed; secondly, that his employers were telling lies about the terms of employment; thirdly, he raises the issue of contracts again; fourthly, he said the time-keeping records were open to criticism and doubt and fifthly, that he did not know that he had the right to ask for another Contract of Employment and he gives various other reasons. There are six or seven which relate to time-keeping and bad attendance and he takes the point that poor attendance should not have been inserted there it should only have been bad time-keeping. I read the Notice of Appeal it seems to me that there is no real likelihood of this appeal succeeding. In any event there is no issue of law that I am able to discern in that matter.

In the exercise of his discretion, in my judgment, the learned Deputy Registrar was entirely correct in the decision which he reached and this Interlocutory Appeal is dismissed.