Martin Bierbaum Group (Investments) Plc v Nisbet [1994] UKEAT 845_93_0505

EAT

Martin Bierbaum Group (Investments) Plc v Nisbet

[1994] UKEAT 845_93_0505 · 1994-05-05

JUDGE HULL QC:

I am now going to deal solely with the first part of the appeal, that is to say to deal with the decision which was promulgated on the 4 March 1994 relating to the sitting of the Industrial Tribunal on 19 February 1993 under the chairmanship of Mr Meeran. I will state the facts as shortly as I can.

The Applicant was Mr Nisbet, Mr Nisbet Junior I should call him because his father and uncle come into this. He joined the Respondents, international currency dealers, in 1987. He worked in the dealing room where he was responsible for some very large transactions. On the 5 December 1991 there was an unhappy incident in which he exchanged words with a manager. He, apparently, was dismissed on that occasion.

He appealed against that dismissal and the employers wrote on the 18 December 1991 saying:

"We will hold a disciplinary hearing and you are suspended."

It appears from what we have read and been told about the case that he accepted that situation; he was eventually dismissed on the 15 January 1992 when a letter of dismissal was written. His wages were apparently paid up to that date and a settlement was reached on that date, and he himself seems to have regarded that date as being the effective date of termination. Whether that involves, so to speak, a novation of the contract of employment I do not know. But at any rate that has been treated, both by him and by the Tribunals which heard the case, as the effective date of termination.

Apparently the notification of the appeal hearing did not actually reach him in person because on the 24 December 1991 Mr Nisbet Jnr went abroad. He went to Brazil. He had apparently got a friend there. She may have been his fiancee, because he married her fairly shortly thereafter. After that he was in Brazil, although on a visitor's visa or something of that sort which meant that he could not work, although he wished to work in Brazil. He left dealing with his affairs a Mrs Newbold - she is described as his foster mother - Mr Leslie Nesbit, his father, and Mr R Nesbit, his uncle who lived in Doncaster. All these three people helped him with his affairs whilst he was out of the country and had authority to deal with his affairs, at any rate to some extent.

Before he went he was well aware of his right to apply to an Industrial Tribunal and he had filled in the form IT1, which, when one obtains a copy at the Post Office or Employment Exchange, is attached to a sheet of instructions which plainly states the time limit of three months, plainly states where the form is to be sent and indeed gives the telephone number of the Central Office. He was out of the country when what purported to be a disciplinary hearing was held in his absence on the 7 January 1992 and the letter of dismissal was sent on the 15 January 1992. He telephoned from time to time from Brazil to England and by February 1992, he became aware that his employment had gone on until the 15 January. He then spoke to Mrs Newbold on the telephone and told her to destroy the original IT1. It was arranged that he would be sent another IT1 to fill in, based on the new date of dismissal.

He was married some time in April or May 1992, but because of the situation over his residence in Brazil he found it necessary to go to Paraguay. At some stage, it is said, Mrs Newbold became aware of the time limit. There were times when Mrs Newbold and his father and uncle were not in touch with him. It was not possible to get in touch with him. He filled in the IT1 form and sent it to England, apparently; but it was not received in this country by any of those who were helping him and so another one was sent out.

As I say, Mrs Newbold eventually became aware of the time limit and it was plain that time had run out; and so it was decided that a form would be completed in this country on his behalf. It was eventually presented to the Tribunal on the 14 July 1992; on any view three months out of time. The Industrial Tribunal, under the Chairmanship of Mr Meeran and sitting at London South, decided to try the question of time as a preliminary issue under Section 67 of the Employment Protection (Consolidation) Act the position is as follows:

Sub-Section 2 provides:

"An Industrial Tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months."

So if the complaint is not presented within three months of the effective date of termination the Tribunal is without jurisdiction unless two conditions are satisfied. First of all it must be shown that it was not reasonably practicable to present the complaint within three months and secondly, it must be shown that it was presented within a reasonable period thereafter. As I say, it was decided to try that question as a preliminary issue.

The Tribunal sat on the 19 February 1993 and they did not hear the Applicant himself, for he was still not available, but they heard Mrs Newbold. They were satisfied that she was an accurate witness. They held that they did have jurisdiction, but their decision was never promulgated. The case then proceeded before another Industrial Tribunal for hearing the substantive merits of the complaint of unfair dismissal, on the 5 August 1993. That was under the Chairmanship of Miss Donnelly.

The employers attended. They protested about various matters. They took no part in the hearing and it resulted in an award in favour of the Applicant. Amongst the matters which were put forward to this second Tribunal were that it was desired to appeal against the decision of the first Tribunal which sat in February 1993, but that that decision had not yet been promulgated. That indeed was the position. The Chairman has written to say that how that came about was something of a mystery to him. It was perfectly correct that the decision was requested but through some oversight (he was not able to say what it was) it had not been promulgated.

Eventually, what purports to be the decision of the first Tribunal was promulgated on the 4 March 1994; that is to say more than a year after the hearing of the preliminary point. It is said by the Chairman that no copy of the original decision, which he thinks there was, has been found on the file and he therefore in effect had to reconstruct this decision from his notes. It is not clear that before doing that he consulted the members. It may well be that the industrial members would have no recollection by that time, or only a very slight recollection, of the hearing.

At any rate, it does appear an irregularity on the face of it, because of course the way in which Tribunals work is that they usually discuss their decision on retirement and the Chairman, having gathered from his members a common view if they are unanimous, will then give the common view in his decision. If he has to reconstruct it from his own notes without the benefit of the recent recollection which the members and he will have of what has been said to them, there is clearly a danger (to say the least of it) that the reconstructed decision will not represent the accurate view of himself and the members as it was at the time when they heard the matter.

Now turning to this reconstructed decision (I call it that without any disrespect to the experienced Chairman, who was doing what he thought was right in the circumstances) it is admitted that what the Tribunal appears to have done is to consider whether it was reasonably practicable for the complaint to be presented within three months of the effective date of termination on the 15 January 1992.

It appears quite plainly that they did not address their minds to the further question whether the 14 July represented a date which was a reasonable time thereafter, bearing in mind that it was not reasonably practicable to present the complaint within the three months. As I say, it was the decision which was reached under difficulties. The Tribunal did not hear the Applicant.

In the circumstances it is a glaring omission which must be treated as significant. It has been said by Mr Nicholls, for the Appellant, that the decision is wholly irrational and he points to the considerable gaps that there are between the various steps taken here. He says, not without reason, that Mr Nesbit is a man of business. He had been a foreign exchange dealer for a substantial number of years. It was his decision to leave the country very shortly after his dismissal and seek to pursue a career in Brazil and it was perfectly open to him to make proper business like arrangements to carry on his application to the Tribunal through others in this country. He need not have left it to his foster mother, his father and his uncle. He could perfectly well have instructed a qualified representative.

That may very well be so but we, having considered it as carefully as we can, are not prepared to say that this decision is on the face of it perverse, or unlawful, or such as no reasonable Tribunal could, properly directing itself on the law, have reached. What we do say is that there is a serious omission in the reasoning of the Tribunal and they did not consider whether the claim was presented within a reasonable time after the conclusion of the three months.

It therefore appears to us to be inevitable that we must send the matter back to a Tribunal differently constituted, so that they can consider all matters afresh and decide whether the Tribunal does indeed have jurisdiction to entertain this complaint.

I have mentioned that further proceedings took place which led to a decision of the Tribunal under Miss Donnelly on the 5 August 1993 in favour of the Applicant. One of the grounds on which it was objected to that Tribunal proceeding with the matter was that it was intended to appeal here, and that that was impossible because the decision of the first Tribunal had not yet been promulgated. There were other grounds of objection. But the representative of the employers, who are now in liquidation, having heard the Tribunal reject his submissions, thought it right to withdraw. So that Tribunal did not hear submissions or evidence from the employers, but did hear the evidence of the applicant and reached what purported to be a decision.

Clearly, if the Tribunal did not in fact have jurisdiction as was submitted by the employers, their decision would on the face of it be anullity. If, taking the alternative hypothesis, the Tribunal did have jurisdiction, the question whether we ought to upset that decision is one which we would have to entertain. But we do not propose, subject to any submissions which are made to us, to hear what is in effect the second part of this appeal now. As I say, it may very well emerge that the Tribunal had no jurisdiction and that therefore that decision is anullity. It may well on the other hand emerge, as a result of the hearing for which we ask, that the Tribunal did have jurisdiction but that there are irregularities which should be considered, in the light of the decision of the Tribunal for which we now ask.

We think in the circumstances it would be wrong for us to proceed with the second part of the appeal and subject to any submissions which are made to us we propose simply to direct that the subject matter of the hearing on the 19 February shall be heard again by a Tribunal differently constituted to decide the preliminary point whether in fact the Tribunal does have jurisdiction to entertain the complaint which was made to it on the 14 July 1992.