Finzero Ltd (t/a Shiv Fashions) v Holman & Anor [1994] UKEAT 359_94_2107

EAT
Finzero Ltd (t/a Shiv Fashions) v Holman & Anor
[1994] UKEAT 359_94_2107 · 1994-07-21
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Industrial Tribunal held at Leicester on the 3rd December 1993. The parties in the proceedings were a Miss Durhana and a Mrs Holman, who were the Applicants. They claimed against Finzero Limited t/a Shiv Fashions, redundancy payments and holiday pay. They had presented their applications to the Industrial Tribunal in August 1993.Shiv Fashions wrote a letter to the Office of the Industrial Tribunals in relation to the proceedings saying that they would like to inform the Tribunal that the two employees were employed on the understanding that they were on a trial basis and, as such, were not entitled to any notice of dismissal. There was a footnote added:
"N.B. As regards to Mrs A Holmans, holiday money, we agree to pay her for 1 week, as annual terms were fixed at 3 weeks pay. Also, Miss A Durhana, was already paid for her holiday."
The hearing of the application took place on the 3rd December. Summary reasons were given that no redundancy pay was due to Miss Durhana, but she had not been paid her accrued holiday pay. An award of £242 was made in her favour.As regards Mrs Holman it is also held with her that she had not been paid holiday pay of 14 days at £34.60p a day and that amounted to £484.The summary reasons were notified on the 3rd February 1994. Full reasons were provided on the 23rd February 1994.Finzero t/a Shiv Fashions was dissatisfied with the decision and appealed by an appeal notice dated March 1994. A number of points are taken on the appeal. This is the preliminary hearing to determine whether any of them raises a reasonably arguable point of law which would justify this case going to a full hearing.At the hearing today Mr Sharma, a Director of the Company has attended and also a friend, Mr Lall. We have heard submissions from both of them. The first point which is made is that the decision of the Tribunal was reached in the absence of any representative of the Respondent. That appears from the decision itself. The question arises is what is the explanation for the absence of attendance or representation. The Tribunal, in paragraph 2 of its Full Reasons, stated this:
"On the day before the hearing the respondent company contacted the Tribunal and said they would not be attending as they were prepared to pay any outstanding monies found to be owing by the Tribunal."
In those circumstances the Tribunal went on and decided the matter solely on the basis of the evidence given by Miss Durhana and Mrs Holman, who both attended "in person". There is a dispute about the correctness of the Tribunal's understanding of the position. Mr Sharma informs us that he received a fax from the Leicester Industrial Tribunal on the 2nd December 1993, the day before the hearing. We heard from Mr Sharma today that he spoke on the telephone to Mr Goodchild, as he recalls. Mr Goodchild sat as the Chairman of the Tribunal on the 3rd December. Mr Sharma states that the reason for the telephone call was that he wanted the case postponed because he needed more time to prepare it, as not all the documents had been received. Mr Sharma's understanding of the position was that Mr Goodchild said to him, in the course of the conversation, that the case was clear and there was nothing worth disputing in view of the employment being for less than two years and thus no entitlement of redundancy money. Mr Sharma also says that Mr Goodchild stated that, in view of this, it was not worth his while and fare coming to the hearing and advised that, in case there was any necessity for any clarification, the case would be adjourned and Mr Sharma would be given a full hearing. Contrary to that understanding the hearing took place and a decision was made in the absence of any representative of Shiv Fashions. It also appears from the documents handed to us this afternoon that the Industrial Tribunal in Leicester faxed to Mr Sharma five pages of the documents at just after one o'clock in the afternoon of the 2nd December. The complaint on behalf of Shiv Fashions is that their understanding was that the hearing would be postponed in view of the short notice and non receipt of documents. In fact, what happened was a decision reached by the Tribunal on hearing only the evidence of Miss Durhana and Mrs Holman, without hearing the evidence and arguments of Shiv Fashions.This Tribunal is in no position to know what did happen in relation to the hearing of the 3rd December. In the Full Reasons the Tribunal had made a clear statement of what they understood the position was. Before us Mr Sharma stated that, as a result of his telephone call with Mr Goodchild, his understanding was different than that. In those circumstances we are unable to say that this case should not proceed to a Full Hearing. There is something, possibly in the nature of a misunderstanding, which needs to be examined before we can make a decision on this appeal. If Mr Sharma is right, and he was misled into thinking that there was going to be a postponement of the hearing, there may be an error of law since the Rules of Procedure provide that a party is entitled to have a hearing at which he can present his own evidence, through witnesses and documents, and challenge the evidence of the other side. That hearing has not taken place here. If what is stated in paragraph 2 of the Tribunal's decision is right, we would find it difficult to see how there could be an error of law because, the position would be that Shiv Fashions had deliberately decided not to attend and were prepared to abide by the decision of the Tribunal. What we propose to do is to adjourn this matter to a Full Hearing in order to look at this point in greater detail. For that purpose we need to have an affidavit sworn by Mr Sharma within 28 days setting out the circumstances in which he came to speak on the telephone to Mr Goodchild on the 2nd December 1993 and also a statement of his recollection of that conversation. He should give a full explanation of the reasons why there was no attendance by Shiv Fashions at the hearing on the following day. Mr Sharma should also exhibit to the affidavit any documents relevant to his evidence, in particular the fax and attached documents which he received on the afternoon of the 2nd December. If there are any other documents relevant to this matter they should also be exhibited to the affidavit. When that affidavit has been received it will be submitted to the Tribunal in Leicester for their comments. When those have been obtained this matter will proceed to a hearing of the appeal.The Order today is that this case will proceed to a Full Hearing, with those directions onto the preparations for it.