Teixeira v Garfunkels Restaurant Plc [1994] UKEAT 410_94_2906

EAT
Teixeira v Garfunkels Restaurant Plc
[1994] UKEAT 410_94_2906 · 1994-06-29
"I have been employed by Garfunkels plc since 12th June 1989. I have been employed as a waitress at various branches of Garfunkels since June 1989. Over the Christmas of 1992 I was ill. I was away from work for 14 days. On my return I was informed that someone else had been employed in my position. I was unfairly dismissed on 2nd January 1993."
The Respondents, Garfunkels Restaurant plc, put in a Notice of Appearance to that complaint which said that she was dismissed for being absent from work without adequate reason and in paragraph 8 of their answer to her complaint they wrote:
"Miss Teixeira was employed by us as a part-time waitress from 2.7.91 until 20.12.92 (last day worked) she was absent from work without adequate reason - ie she failed to inform us of her illness as per company procedure, and failed to submit a sick certificate as per company procedure for all illness of eight days or over.

Accordingly she was summarily dismissed."

Those documents having been received, there was a hearing before the Industrial Tribunal summoned for the 23 February 1994 held at London (North) at which both sides were represented by Counsel. Miss Teixeira was represented by Mr V Lean of Counsel and the Respondent by Mr T Croxford of Counsel. An Order was made on that day in these terms:

"Upon hearing Counsel for both parties

AND BY CONSENT

IT IS ORDERED THAT:1 This application be adjourned on the terms agreed (set out in the Schedule attached hereto) until 23 March 1994 when it will be dismissed by the Industrial Tribunal as having been withdrawn by the Applicant.2 There be liberty to apply."Apparently, on the 24th February 1994, that is the day after that Order had been made, Miss Teixeira wrote a letter by fax to the Tribunal; no copy of that letter by fax has been provided to us.On the 24th March 1994 the Office of the Industrial Tribunals wrote to Miss Teixeira as follows:
"I acknowledge receipt of your fax and letter dated 24th February 1994 which have been referred to the Chairman concerned who states that the case cannot be re-opened unless both sides agree as the parties were represented at the hearing by Counsel when the terms of settlement were agreed."
An appeal is lodged on the basis that the Chairman of the Tribunal has refused to review the decision.Mr Marks, who appears for the proposed Appellant today, in terms says she did not understand what went on at the hearing on the 23rd February and justice demands that the hearing should be re-opened.There well may be something in what Mr Marks says but the way to re-open it is not in our judgment by asking the Chairman to review a decision which he made by consent, at a hearing where Counsel represented both parties. It seemed to us that the appeal which Mr Marks embarks on, asking for a review of that decision in the way he or his client has asked for it, is not one which is open to him and in the circumstances we propose to dismiss the application for review.We note that there was liberty to apply given to the parties on the 23rd February 1994. We do not at the moment understand, and Mr Marks has been unable to help us in any way,as to why that liberty to apply was not used between the 23rd February 1994 and the 23rd March 1994. However on the appeal nothing turns on this and we dismiss it.