J Sainsbury Plc v Viitmaa [1995] UKEAT 1091_95_2811

EAT
J Sainsbury Plc v Viitmaa
[1995] UKEAT 1091_95_2811 · 1995-11-28

JUDGE BYRT QC :

This is an appeal against the decision dated 22 August 1995 of a Chairman sitting alone, of the Stratford Industrial Tribunal. He decided a preliminary point to the effect that an Originating Application presented by Mr Viitmaa, the Applicant in the matter claiming unfair dismissal, had been presented within a reasonable time of the expiry of the three months period prescribed by Section 67(2) of the Employment Protection (Consolidation) Act 1978 and, for that reason, he ruled that the Applicant should be allowed to proceed to a full hearing of the Tribunal.The employers, the Appellants in this appeal, appeal that decision. There are a number of factors which are agreed and the Chairman made certain findings, and they are as follows:The Applicant, Mr Viitmaa, had his employment terminated on 6 January 1995. It was found by the Chairman that, bearing in mind, the stamp mark on the envelope, the Originating Application was received at the Central Office of the Industrial Tribunal on 6 April 1995 and it is clear, on the authorities, that that is one day out of time.There was a finding by the Chairman that the letter had been posted on 4 April, but it was after the last collection and in consequence, it had not been collected until 5 April. The natural consequence of that was that it would not reach its destination before the 6th.In our view, the linchpin finding in the reasons is in paragraph 4 and there the Chairman says this:
"4 ... The Applicant I find, was confused as to the advice he was given and honestly thought that 6 April was the last day upon which he could present the application. ..."
What that finding says is this; that the Chairman found the Applicant honest and he accepted the excuse that he advanced as genuine. He found that the Applicant had genuinely made a mistake of thinking the 6 April was the last date. Mr Jeans for the employers has argued that that is not enough upon which to base the decision. We were referred to the case of Riley v Tesco Stores [1980] ICR 323, where at page 328E Stephenson L.J. says as follows:
"... Where an employee alleges ignorance of his right or of how and when he should pursue it, or is under some mistaken belief about these matters, an industrial tribunal must look at the circumstances of his ignorance or belief and any explanation that he can give for them, including any advice which he took, and then ask itself whether the ignorance or mistake is reasonable on his, or his advisers' part, or whether it was his, or his advisers' fault: if either was at fault or unreasonable, it was reasonably practicable to present the complaint in time. ..."
The important part of that judgment is that it raises the question whether Mr Viitmaa's mistake, made against the background of the help he received, was reasonable or was he at fault in some way? Mr Jeans, in his argument, said that the Chairman never asked that second question; never asked whether the Applicant was at fault in making the mistake that he did or, whether his conduct was reasonable in that respect. He says that, in itself, would be a misdirection by the Chairman of the Tribunal which would warrant the appeal being allowed.Looking at the circumstances, what are they? On 16 January or thereabouts, it is plain from the evidence that the Applicant was seeking the advice of a Solicitor. Mr Viitmaa's evidence was that while receiving advice about a potential claim, there was no mention of critical dates by which an Originating Application had to be submitted. Mr Jeans suggests that the Tribunal should have asked the scope of the Solicitor's retainer, and hence the extent of the Solicitor's duty. He then submits that it was the Solicitor's duty to have advised the Applicant about the concluding date.The fact is that very shortly after the advice had been given by the Solicitor in middle January, the Applicant ran out of money and thereafter ceased to seek professional advice at that level.We do not think that it is surprising that, at that early stage, a Solicitor would not have counselled his client about the date by which an Originating Application had to be filed, but we do not think that this is a critical aspect of the case. The burden of proving his reasonableness rests with the Applicant and the fact that he got no advice from his Solicitor does not carry the story much further forward.So one moves on to the next stage. Apparently, the Applicant's wife was ill. The Applicant had satisfied himself that his wife's evidence was essential to his claim and accordingly, he determined that the application should be filed with the Industrial Tribunal at the last possible moment.In order to determine what that was, he went in February to a Jobcentre, and read the booklet they have available there for advising a potential Applicant for a claim to the Industrial Tribunal. On reading the booklet he found himself somewhat confused. He thought that the advice given there was somewhat ambiguous and we have sympathy with that point of view. The advice merely replicated the relevant section of the Act and many an intelligent person has needed the help of a court of law to construe a particular provision of a statute.Proof of the point in this instance is perhaps best afforded by the fact that in Harvey there are some three or four cases where lawyers have thought it appropriate to argue that the commencement date was the date after the date of termination, rather than the date of the termination itself.In any event, so far as Mr Viitmaa is concerned, uncertain as to what the leaflet meant, he then went and sought advice from somebody in the Jobcentre. We know nothing about the qualifications of that person or his/her experience. What is known, and as was recorded by the Chairman, the advice Mr Viitmaa received was, at one point characterised as being "confusing"; at another point as being "vague", but the Chairman was satisfied that the advice the Applicant finally received was that 6 April was the last day for making the application.Briefed with that advice, what did the Applicant do? There is no evidence that he sought further advice. He decided that 6 April was the critical day. In view of his own uncertainty in construing what the leaflet had said, in view of the uncertainty of the advice that he had received from the Jobcentre adviser, was that a reasonable thing to have done? If left in any doubt, should he not have catered for the possibility that 5 April might have been the crucial date and if he had done so, would it not have been reasonable for him to have posted his Originating Application so that it could reach the Central Office of the Industrial Tribunals at Bury St Edmunds by 5 April? Was it reasonable that he should miss out on the option of 5 April by posting the letter too late on 4 April to catch the last post?These are all considerations it would have been appropriate for an Industrial Tribunal to have taken into account had they asked themselves the right question, namely whether the Applicant's mistake was a reasonable mistake? If the Chairman had asked that question and come to the conclusion that it was reasonable, and that the Applicant was in no way at fault, then his decision would not have been open to challenge, all these matters being questions of fact.We take the view that if the right questions had been asked the inevitable conclusion would have been a finding that the Applicant was at fault. He knew he had received uncertain advice. When relying on 6 April as the critical date, he took an unwarranted and unnecessary risk which in the result has proved wrong. In view of that finding we feel that we must allow the appeal at this instance. The question is as to whether we remit it to the Tribunal for a further consideration.In our judgment, we are in as good a position as any new Industrial Tribunal Chairman would be in determining this matter. There would be no additional evidence. All the relevant facts have already been brought out in the evidence given. In all the circumstances, we think the right course would be for us to substitute our decision for that of the Tribunal Chairman, and we rule that it would have been reasonably practicable for this Applicant to have filed his Originating Application in time; and the fact that he did not do so, means that his case must here and now be dismissed.