Cabaj v Westminster City Council [1995] UKEAT 263_95_0112

EAT

Cabaj v Westminster City Council

[1995] UKEAT 263_95_0112 · 1995-12-01

MR JUSTICE MUMMERY (PRESIDENT): On 30th August 1995 the Registrar refused the application of the appellant for an extension of time for appealing against the decision of the Industrial Tribunal held at London (South) on 9th November 1994.

According to the stamp on the extended reasons for the Industrial Tribunal decision, the decision document was sent to the parties on 19th January 1995. The decision was on the remedy in a case of unfair dismissal. The decision was reached after a hearing in which the applicant appeared in person. The respondent, City of Westminster Council, did not appear. The unanimous decision was that the applicant had contributed 100% to his dismissal and compensation was awarded to be paid to him in the sum £2,180.70, as calculated in paragraph 18 of the decision.

The Notice of Appeal was not served by the appellant on the Employment Appeal Tribunal within the 42 days required by the Rules. The Notice of Appeal was not received here until 3rd March 1995, though dated and signed on 2nd March. There is no dispute that that is one day late and does not comply with the requirements of Rule 3(2) of the Employment Appeal Tribunal Rules 1993 .

In those circumstances the appellant asked for an extension of time for reasons set out in a letter to the Registrar dated 13th September 1995. The Registrar considered representations in a letter 29th March 1995. In a later letter of 13th September 1995 the appellant gave more detailed explanation of the circumstances as the basis on which he wished to appeal against the Registrar's refusal. This is the hearing of that appeal. The appellant has appears in person. Mr Panto represents the Council. They oppose the appeal.

There is no dispute that, in deciding whether or not an extension of time should be granted, the Employment Appeal Tribunal must be given an explanation for failure to comply with the strict time limit of 42 days from the date on which the extended reasons were sent to the parties. The Tribunal must, when considering that explanation, decide whether it constitutes a good excuse for the default. It must also consider all the circumstances to see whether they justify the taking of the exceptional step of granting an extension of time.

In this case, the extended reasons were received by the appellant on 23rd January 1995. They were accompanied by the standard form notes on Tribunal decisions. Paragraph 14 of those notes concerns the time limit for applying to the Industrial Tribunal for a review:

"If you wish to apply for a Review you should do so in writing to the Assistant Secretary of the Tribunals at the Regional Office before the end of period of 14 days after the date on which the Decision was sent to you. This date can be found stamped on the Decision document."

It explains how the letter requesting a review should set out the grounds of application.

There is a separate heading "Appeal Against Tribunal Decision". Paragraph 19 says:

"A Notice of Appeal against a Tribunal Decision must be served on the Employment Appeal Tribunal within 42 days of the date on which the Full Written Reasons for the Decision, which is the subject of the Appeal, were sent to you. [ It is again stated ] This date is shown on the last page of the documents containing the Full Written Reasons."

"An application for Review [ and that refers back to paragraphs 10-15 ] does not alter the time for the Notice of Appeal which continues to run. Action to Appeal may be taken while awaiting the result of an Application for Review."

In his letter to the Registrar in support of his application for an extension (the letter of 29th March 1995) the appellant said:

" I had not realised that my Notice of Appeal was late until I received your letter [ that was the letter pointing out it was one day late ] and re-read the `Notes on Tribunal Decisions' which accompanied the decision dated 19th January 1995. My error arose as a result of initially having worked out what the deadline was for requesting a review and then subsequently calculating the appeal deadline from the review deadline. The Review deadline is defined as `before the end of 14 days after the date on which the decision was sent to you.' This I took to mean that the review request had to be sent by 2 February, and I then calculated the appeal deadline by adding 28 days to this. Due to the different wording for the two time limits, I now see that I made a mistake but that the one document should express the time limit in different terms is I believe, conducive to error."

The appellant then makes a second point, and that is that he did not receive the decision until 23rd January 1995, and he enclosed a copy of a letter from the Westminster City Council indicating that they also received the decision on 23rd January 1995.

In the letter of 13th September 1995, written in support of this appeal against the Registrar's refusal, the appellant refers to the letter of 29th March 1995 and the explanation for being one day late. He refers to certain other matters not relevant to this appeal.

The appellant relies on two matters for saying that he should have an extension of time. First, that he did not receive the extended reasons until 23rd January 1995, although they were stamped as sent on 19th January 1995. In my judgment, this does not constitute an explanation or an excuse for the failure to comply with the 42 day time limit. We have to go by the date stamped on the decision as the date on which the decision was sent. That was a Thursday. It was not received until the following Monday. The fact that there was a delay in the post, or that there might, as the appellants, asserts have been some delay in putting it in the post, does not alter the fact that, when Mr Cabaj received the extended reasons, there were clear instructions in the notes that the date for calculating the 42 days, was the date shown on the last page of the document containing the full written reasons. It is not permissible to speculate about the actual date of the posting or the reasons for the delay in receipt. The point is that, it is clearly related that the 42 days runs from the date on the decision document, not from the date on which it is received, or from the date on which it is actually posted.

The second point, is Mr Cabaj's confusion about the inter-action of the time limit for review and the time limit for appealing, that does not, in my judgment, amount to a good excuse for failure to serve the Notice of Appeal within 42 days from 19th January 1995. The notes are clear. I fail to understand, though Mr Cabaj attempted to explain the position how he came to be as confused as he was about the calculation of the time limits. It is made clear that a review and an appeal are two separate matters. It is made clear that the time limits of the two are different. It is made clear that an application for review to the Industrial Tribunal does not alter the time for serving a Notice of Appeal on this Appeal Tribunal. The explanation in paragraph 19 of the Notes could not be plainer.

In those circumstances I have reached the conclusion that the Registrar was right to refuse the extension. 42 days is 42 days. There is no good excuse in this case for failure to comply with the time limit. The appeal is dismissed.