Dimemetal Ltd v Fairgrieve [1994] UKEAT 699_94_0109

EAT

Dimemetal Ltd v Fairgrieve

[1994] UKEAT 699_94_0109 · 1994-09-01

MR JUSTICE TUCKER: This is a Preliminary Hearing Ex Parte of an Appeal by Dimemetal Ltd against a decision of the Industrial Tribunal sitting at London South. The original hearing was held on 24 and 25 February of this year, and the Tribunal then decided that the Applicant, Miss Fairgrieve had been unfairly dismissed.

Copies of the decision was sent to the parties on 17 March but the Tribunal had already announced its decision and given brief reasons for it at the end of the hearing on 25 February. The Appellants were dissatisfied, particularly it seemed at that time, with the way in which they had been represented. They applied for a review of the Tribunal's decision and that review was held on 21 March. The Tribunal decided that the application should be refused.

There was a decision on the remedies given on 31 May whereby the Appellants, Dimemetal Ltd, were ordered to pay the Applicant the sum of £11,384.60.

The grounds on the present appeal are that the Appellants were not the employers of the Applicant and should never have been named as Respondents in the application. It is suggested that no order should have been made against them by the Tribunal and that the only reason such an order was made was because the true situation was misrepresented to the Tribunal. The case was presented before the Tribunal by Mrs Jayson. She is the mother of Mr Daniel Jayson who has appeared before us as a director of the Company, to present the Company's case.

When the Applicant, by her Originating Application IT1, applied to the Industrial Tribunal it was on the grounds of unfair dismissal. Her application was dated 1 December 1992. She named her employer as Mrs J. C. Jayson. Mrs Jayson entered an appearance. It is dated 29 January 1992, but that is clearly a mistake for January 1993. In that Notice of Appearance, Mrs Jayson described herself as "other title J. C. Jayson" and where it was said, "give the name of the company or organisation" she put "Dimemetal". In paragraph 8 where she was asked to give details of the grounds on which she would resist the application she said this, so far as it is material:

"Ms Fairgrieve joined Claire & Company on the 15th of January 1990 as an administrator"

But then this:

"On June 30th 1992 Miss Fairgrieve was given written notice that she was now to be employed by Dimemetal Ltd, a company which took over the administration of my Estate Agency business, as I ceased trading as a sole trader for that business. My son Daniel M. Jayson and myself are directors of this company. The terms and conditions of Ms Fairgrieve's original contract were brought forward to this company"

And in the next paragraph but one:

Correspondence dated 24/10, 06/11, 11/11, 16/11, 17/11, 19/11, 26/11 was sent between Dimemetal and Ms Fairgrieve confirming that she had not been dismissed and her position was still open".

So there Mrs J. C. Jayson was clearly stating that the Applicant was employed by the company. If there was any doubt about it, that was resolved by a letter sent by solicitors acting on Mrs Jayson's behalf dated 15 November 1993, in which they stated that there may have been some misunderstanding about the matter in relation to the Notice of Appearance. They enclosed an amended Notice of Appearance setting out more clearly the exact nature of the case, in which they said:

"The Applicant has named the incorrect Respondent, the Applicant's employer being Dimemetal Ltd as advised to the Applicant by memo dated 30th June 1992. Without prejudice to the above this Notice of Appearance is entered on behalf of Mrs J.C. Jayson and/or Dimemetal Limited".

When the matter first came before the Tribunal, the heading to the application was Applicant, Miss Aileen Fairgrieve and Respondent, Mrs J.C. Jayson. The Respondent was then represented by Mr Treppas, a solicitor, and it appears that he is a partner in a firm of Malkins Solicitors who had sent the letter to which reference has been made. There was no issue, apparently taken at that hearing about who was the Applicant's employer, in the sense that it was certainly not suggested that the Applicant's employer was Claire & Company.

The unanimous decision of the Tribunal was that the Applicant was unfairly dismissed. Unfairly dismissed by whom we ask? Presumably, by the Respondent, Mrs J.C. Jayson, but as has been said, the Respondent was dissatisfied with that and she wrote applying for a review of the decision. In that letter, which seems to be dated 31 March 1994, though it is not entirely clear, Mrs Jayson described the Applicant and then described the Respondent as Dimemetal Ltd (J.C. Jayson).

When the Tribunal sat to review the matter, which they did on 21 March 1993, hence my query about the date of the previous letter, they were told that the correct title of the Respondents should be Dimemetal Ltd and they record that fact. They also record that the correct title of the Respondents is amended, by consent, to Dimemetal Ltd. On that occasion the Respondent was said, in the title to the application, to be Dimemetal Ltd, and on their behalf there appeared Mrs J.C. Jayson and Mr Burger who is apparently Mrs Jayson's business associate.

In paragraph 4 of their decision on that application the Tribunal say this:

"By consent, the correct title of the Respondents is amended to Dimemetal Ltd".

Mrs Jayson explained that the Applicant's employer was Dimemetal Ltd. She was a director of that company. Whatever she did was done in her capacity as a director of Dimemetal Ltd. She apologised for the fact that this was an issue that was not raised at the previous hearing. Ms Zabit, for the Applicant was content not to oppose this application on the grounds that Mrs Jayson assured the Tribunal that any liability in relation to the Applicant's dismissal was a liability of Dimemetal Ltd. That was what the Tribunal recorded. They were fully entitled to reach the decision they did, and to make the finding they did on what they had been told. Then it came to a decision on the remedies which was held on 31 May 1994. Again, the Respondent was said to be Dimemetal Ltd and again Mrs J.C. Jayson appeared on their behalf. She gave evidence and submitted two documents, namely minutes of a board meeting held on 27 April 1994, and a letter dated 28 April 1994 formally resigning as a director of Dimemetal Ltd. There was no suggestion at that hearing that the Applicant's employers were not Dimemetal Ltd and accordingly, the Tribunal, as they were fully entitled to do, awarded the remedies that I have referred to, against that company.

The company now say they were never liable at all. They had no notice of these proceedings and they have only recently seen the documents. We offered Mr Daniel Jayson an adjournment if he wished to consider the documents further, or to take further instructions either from his mother or anyone else. He declined that invitation. He wished us to proceed with the matter today and we are according doing so.

An appeal will only lie to this Tribunal on a matter of law, where it can be demonstrated that the Tribunal were wrong in law, or that they reached a decision which could be categorised as "perverse". We see no error of law by this Tribunal. They have been into the matter fairly and fully on a number of occasions. Nor could it possibly be said that they were perverse in any decisions they reached. If Mr Daniel Jayson now says that his mother has deceived the Tribunal and him, which is a serious allegation for any son to make against his mother, he must take the matter up with his mother. We cannot help him and this appeal is dismissed.