Stewart v Neotronics Ltd [1992] UKEAT 83_92_1905

EAT
Stewart v Neotronics Ltd
[1992] UKEAT 83_92_1905 · 1992-05-19
MR JUSTICE WOOD (PRESIDENT): This is an appeal from an Order of the learned Registrar dated the 6th March of this year, whereby she refused an application by Mr Stewart, the Appellant, who is the Applicant below, for an extension of time within which to lodge his appeal to this Court from a Decision of an Industrial Tribunal sitting at Bury St Edmunds and the Full Reasons of which were promulgated on the 15th November 1991.The Originating Application was filed on the 20th February 1991, and alleged unfair dismissal. At that time the Applicant, Mr Stewart had consulted solicitors, Messrs Wortley Redmayne & Kershaw of High Street, Chelmsford and they assisted him in preparing his case for the Tribunal.By the time of the hearing on the 5th September 1991 those solicitors had ceased to act. The record of the proceedings before the Industrial Tribunal show that Mr Stewart was acting on his own behalf but there was no formal removal of their name from the record by those solicitors.The Tribunal gave Summary Reasons promulgated on the 30th September 1991. The Applicant wrote to the Regional Office of Industrial Tribunals asking for Summary Reasons on the 10th October and they were sent to him on the 17th October. He then requested Full Reasons. Those Full Reasons were promulgated as I have said, on 15th November but the Applicant did not receive them until the 8th January 1992. Those Full Reasons and the Summary Reasons were sent to his solicitors, but as the solicitors explained in their letter of 22nd January 1992, they thought that as they no longer acted and had in fact sent in their account for fees to the Applicant, the Full Reasons were sent as a matter of courtesy.The Applicant was in touch with the Regional Office of Industrial Tribunals in a number of letters and also by telephone. He wrote on the 17th October 1991 asking for the Full Written Judgment, he repeated that request on the 21st November 1991; and again on the 5th December 1991; and again on the 18th December 1991; and again on the 7th January 1992. He does not receive a written reply until the 8th January 1992 and that only refers to the letter of 18th December 1991 and not to any of the earlier correspondence. It is said that the Full Reasons were sent to the solicitors mentioned in the Originating Application because their names had not been erased from the file. Mr Stewart comments, and fairly comments, that he had been appearing in person, that the record showed that he had appeared in person and it might reasonably have been supposed that the Summary Reasons and the Full Reasons should be therefore sent to him in person. Moreover, although the Full Reasons were promulgated on the 15th November, it might have been recognised by his subsequent letters that the Full Reasons had not been sent to him.This is yet another example of certain cases that have been coming before this Appeal Tribunal where the Reasons are being sent to advisers, and either are not being forwarded by advisers to their clients, or are being sent to advisers after advisers have ceased to act. It is clear that this whole aspect of procedure in front of industrial tribunals is one that merits careful review and I hope that the learned Regional Chairman will be able to read this Judgment and perhaps ascertain whether there is not some better way of arranging the forwarding of Reasons.Mr Stewart took further advice from a different firm of solicitors and that is the reason for the delay of 28 days from his receipt of the Full Reasons until the Notice of Appeal. There is therefore, some explanation for his failure to file a Notice of Appeal out of time. He was well aware of the 42 days limit from the receipt of Written Reasons and he was doing his best to obtain those Written Reasons.Therefore, in the exercise of discretion, I might consider that there was an explanation for the lapse of time, however, there is another aspect of the exercise of the discretion by the learned Registrar. She had some documents before her but has not heard the full argument nor seen the documentation which I have now been able to see.The case and the Reasons must be examined and the whole circumstances examined to see whether there is any merit in this appeal. If in fact one were minded to extend time then it would be pointless so to do if the appeal had no chance of success.This case was one which on its facts was comparatively straight forward. The bases of the two cases are clearly set out in paragraphs 1 and 2 of the Full Reasons. The Applicant's case was that he had been unfairly dismissed for refusing to carry out a lawful instruction. He did not deny the refusal but maintained that the order was not reasonable nor in the best interest of the Company and it was his duty as an employee to put the interests of the Company first. He also thought and suggested that the disciplinary procedure which was followed was unfair.The Respondent Company, Neotronics Limited, put forward the case that this was a blatant refusal to carry out a lawful instruction after a considerable period of difficulty and when the situation, in effect, had become impossible.The Tribunal heard the Applicant, it also heard a Dr Peter Julian Iredale, who was the Respondents' head of research and development and from a Mr Gareth Jeremy Jones, a Manager in the Research and Development Department, who substantially corroborated Dr Iredale's evidence on various matters. Having looked at that evidence and having looked at the documentation, the Tribunal in paragraph 4 expressed the preference for the evidence of the Respondents to that of the Applicant where there was conflict or variation between them and on that basis they make a series of findings which are set out in paragraph 4 of the Decision. Those findings stretch over some 3 1 / 2 pages. It would be unnecessary and indeed superfluous for me to read all those findings of fact but in essence what has occurred was this.The Applicant was a technical author writing instruction manuals, book service manuals and other technical documentation. Certain difficulties arose between him and Dr Iredale in February 1990 and a memorandum was sent to the Applicant by Dr Iredale indicating that he should work without exception on a given priority list. The jobs were to be tackled in order of priority until lack of input forced a move to the next job in the priority list and so on.The problem again arose in April 1990 when Dr Iredale reprimanded the Applicant and looked to him for improvement in the quality of his work; there was a particular incident about dictionary to which I need not refer. Then again there were further problems in July. Dr Iredale was being chased by a customer for a copy of a manual and again stressed to the Applicant he must complete the work as requested. Then by November 1990 the Tribunal found this:
"At this stage the applicant had been told somewhere between twelve and twenty times by Dr Iredale that he was to treat the preparation of the Exotox 60 manual as a matter of priority."
Dr Iredale saw the Applicant in his office on the 22nd November and there was a somewhat heated exchange; there was a disciplinary interview later that day; a memorandum was prepared and accepted as accurate by the Tribunal, the Applicant again refused to work on the manual and he was told to do so again, subsequently, and refused to do so. This situation simply continued and ultimately on the 27th November 1990 Dr Iredale again asked the Applicant if he would start work on the Exotox manual. He received the answer "no" and the Applicant was dismissed.Again, there is a document in the bundle which is accepted as accurate and in that the following evidence is found Dr Iredale said "Are you prepared to start work on the Exotox 60 service manual?" Answer from the Applicant "Regretfully no - not at the moment, perhaps later" and the note at the bottom from Dr Iredale:
"I dismissed Alistair for refusing to carry out my instructions to work on Exotox 60 service manual at 2.15 pm on the 27th November 1990 and there it is witnessed."
The Appellant appealed. The reason was found by the Tribunal to be as noted there by Dr Iredale. The Applicant appealed and the appeal procedure is set out by the Tribunal. Then the Tribunal summarise their reasoning in paragraph 5, 6 and 7 of the Decision:
"5 It is for the employer to establish the reason for dismissal. It is clear in this case, beyond any reasonable doubt, that the applicant was dismissed for refusing on a number of occasions to obey an instruction that was both lawful and reasonable, namely the preparation of the service manual for the Exotox 60.
6 We are satisfied that the dismissal was fair having regard to the provisions of section 57(3) of the Act, because the applicant, having been repeatedly instructed to carry out his duties according to the priorities set by his lawful superior, and despite a final written warning, still refused to carry out those duties. Further, on his own admission, he knew he was disobeying lawful instructions, but despite numerous chances refused to change his stance.7 The employer acted with patience and fairness over a period of months and gave the applicant every opportunity to explain his point of view.8 The dismissal was in all the circumstances clearly fair. We take the unusual step of going further in this case and indicating that a reasonable employer might indeed have dismissed at an earlier date, quite properly."Mr Stewart disagrees with that decision, he feels that he was unfairly treated by his employers. He then asked for a review but he asked for a review of the Summary Reasons. The Summary Reasons are before me and in those Summary Reasons he raises a number of matters. He raises, so far as paragraph 3 of those Reasons as follows:
"Paragraph 3. I did not have `every opportunity to raise all matters' as to take an instance, I was prevented from going through the verbal warning. An integral part of the dismissal procedure.
Paragraph 4. I believe that the court procedure was in error and that, as the respondent did not provide an answer to the irregularities in the dismissal procedure as described in my initial application, the findings of fact are in error.Paragraph 2. I believe that a fair and reasonable Tribunal would come to a different decision considering the above points."The matter was examined again by the learned Chairman who answers in the Reasons for refusing a review as follows:3 The applicant had every opportunity to raise all matters referred to in the application and there is no suggestion that fresh evidence has come to light which it was not reasonably possible for him to have produced at the hearing.4 In essence the applicant disagrees with our decision and our findings of fact. In so far as he raises any questions of law, and on my reading of his application he does not, he must seek his remedy elsewhere.5 The respondent had a very strong case and the applicant was perhaps a little fortunate to avoid an order for costs being made against him."The review is refused.In his Notice of Appeal to this Tribunal Mr Stewart has raised a number of matters. I have impressed upon him, although I think he finds it difficult to understand, that there is no appeal to this Tribunal other than on a point of law; it must be shown that the Tribunal erred in law.He divides up his Notice of Appeal into three. The first two pages, which are paragraphs 2 to 8 are all dealing with issues of fact and the inference is to be drawn from documentation. All those are questions for the Tribunal. The Tribunal clearly preferred the evidence of the Company and found the facts against Mr Stewart.In the second part of his Notice of Appeal he refers to what he calls "procedural irregularities" and he submits that the Tribunal must hear both sides of a dispute in order to make a reasonable decision. Secondly, that he was prevented from describing the verbal warning meeting apparently because of the time involved, and that was unfair. He felt that he was not fairly dealt with at the hearing. Although one might, in certain circumstances, have asked the learned Chairman for his comment upon that, it so happens this was raised in the application for review, in the letter of the 18th December, and dealt with by the learned Chairman in the refusal for review of the 2nd December. So that in fact I have before me the answer of the learned Chairman who rejects these criticisms out of hand.The third part of the Notice of Appeal deals with the letter which was marked "without prejudice" and was nevertheless admitted in evidence by the learned Chairman. The question of the admission of evidence is essentially for the Tribunal, and having seen that letter I see no reason why the learned Chairman, in the exercise of his discretion in the application of the normal approach to these matters, should not have admitted it. There is no question of negotiation and offers or refusals of offers in that letter, it is a clear statement of facts but as Mr Stewart says it is perhaps being slightly franker than he might have been had he thought others would be reading that document. In so far as that was the situation possibly it helped to point towards the truth of the situation.In this particular case I have taken the reasons that I give at far greater length than I might otherwise have done because although the application for the review before the Tribunal was out of time the Tribunal nevertheless gave its reasons. There has been a somewhat tardy approach to some of the questions of time in this case. I would have been minded to have extended time because in my view the fault did not lie in Mr Stewart for the delay in the lateness of his Notice of Appeal. But having looked at the merits of the appeal itself I am quite satisfied that there is no point of law which can properly be raised and that it has no chance of success whatsoever.Although Mr Stewart may not realise it, he may appreciate ultimately that it may save his pocket, I am quite satisfied this is not a case where I should exercise my discretion and extend the time. I agree with the learned Registrar in her decision that the application should be refused, which it is.