Cherrie v Lewis Group [1996] UKEAT 1197_95_0702

EAT
Cherrie v Lewis Group
[1996] UKEAT 1197_95_0702 · 1996-02-07
MR JUSTICE TUCKER : This is a preliminary hearing ex-parte of an employee's appeal from decision of an Industrial Tribunal sitting at Ashford in Kent. The appellant is Mr Robert Cherrie who was formerly employed by the respondent described as the Lewis Group PLC.The appellant's complaint was one of unfair dismissal. He had been employed as an investigation officer by the Lewis Group from 14th July 1987 until, according to his originating application, 25th February 1994. He was dismissed either on that day, or as he contends, on the following day.In their Notice of Appearance the respondents agreed that the appellant had been dismissed. They contended that the reason for it was that he had refused to meet with management to discuss performance. They took the point in their statement which accompanied their Notice of Appearance, that the applicant's application to the tribunal was out of time and that it should be dismissed on that basis. Accordingly, that was the preliminary matter which the tribunal had to consider when it sat for the first time on this case on 5th January 1995.The tribunal reached the unanimous decision that the application was presented out of time. That it had no jurisdiction to consider it, and accordingly, they had to dismiss the complaint of unfair dismissal.The issue which the tribunal had to determine was whether the effective date of termination of the appellant's employment as defined in Section 55 of the relevant Act, was either 25th February 1994 or 26th February 1994. There was no dispute before them or now that if the effective date of termination was the earlier date, the 25th, then the application was presented out of time. Whereas if the effective date was a day later, then the application was just in time. So, it was a small but crucial point that had to be considered. There never seems to have been any application to the tribunal or anyone else to exercise their discretion to extend time and that was not a matter which the tribunal had to consider. The appellant has contended throughout that he was dismissed on 26th February 1994, whereas the respondents have contended that he was dismissed during a telephone conversation on the previous day. That was the issue before the tribunal.The tribunal reviewed the evidence as it then stood. They considered the evidence given particularly by Mr Greenaway, employed by the respondents as to the telephone calls. It is clear that they accepted the evidence which Mr Greenaway gave. They found that the effective date of termination was 25th February and not 26th February 1994. Accordingly, they found that the three month period provided by the Act expired on 24th May 1994, and since the originating application was first received by the Industrial Tribunal on 25th May 1994 it was therefore received out of time. It should have been received on 24th May 1994. So there was only one day in it, but be that as it may, the tribunal were entitled to reach the decision which they did on the evidence then before them. It could not be said, in our view, that that decision was perverse or that it was one which no reasonable tribunal properly directing itself could not have reached.The appellant was dissatisfied with that decision. Not on the grounds that any discretion had been wrongly exercised since the tribunal had not been called upon to carry out such an exercise, but on the factual basis that he was still contending that his dismissal was a day later than the tribunal had found. He applied for and was granted a review of the tribunal's decision. Before that review took place he entered a Notice of Appeal from the original decision to this Appeal Tribunal. That notice is dated 15th February 1995, and is within the time limit.The grounds upon which the appeal is brought are that the tribunal erred in law in that:
"New evidence consisting of tape recordings not available at the hearing 5 January 1995 - The evidence will provide proof that the witness lied under oath and that my application was presented in time."
Those grounds were overtaken by events because, as we have said, there was a review of the tribunal's decision, and that review was held on 24th May 1995. The matter was reviewed by the same Chairman and the same members, in other words, the identically constituted tribunal as before. They heard further evidence, and arguments. The application was on the basis that new evidence had become available. In other words, on the same basis as the appeal. It was the appellant's case as before that there had been no dismissal on 25th February but there had been a dismissal only on 26th February 1994 and that it depended upon the contents of a telephone conversation on 25th February 1994. The appellant was able to produce a transcript of tape recordings which he had, which he had mistakenly believed he had erased at the time of the previous hearing. But the tribunal felt that the matter was carried no further forward, they said:
"6 The matter therefore rests again now as it did on 5 January on a dispute between the Applicant and Mr Greenaway as to whether or not there was a final conversation when the Applicant was told that he was dismissed.
...8. In the conflict of evidence regarding the final conversation we have again preferred the evidence of Mr Greenaway and we find as a fact that there was a final conversation between the two men on 25th February 1994 during which the Applicant was told he was dismissed. This conversation does not appear on the tape recording or the transcript.9. ... This new evidence does not persuade us to change the decision we made on 5 January 1995. We accept Mr Greenaway's evidence that there was the final conversation during which the Applicant was dismissed."The matter did not end there. The appellant remained dissatisfied, and he applied for a further review. That too was granted. It was held on 20th June 1995 by the same Chairman who had conducted the earlier proceedings. The application was refused because it was held that it had no reasonable prospect of success. Still the appellant was dissatisfied. He applied for a further review of that further review. This time the application was answered on behalf of the Regional Secretary of the Tribunal who said this in a letter dated 14th July 1995:
"Your letter of 12 July 1995, received on 14 July 1995, has been referred to a Chairman of Tribunals who has asked me to reply.
Rule 10(9) does not permit a correction such as you suggest.Your application for a further review of the further review of the review decision is refused because:-(a) it is made out of time (Rule 11(4)),

and

(b) it has not reasonable prospect of success (Rule 11(5))."

Meanwhile, there had been an application on appeal to this tribunal presided over by Mrs Justice Smith on 15th February 1995 for various witness orders. That appeal had been dismissed.What it is important for the appellant to understand is this: The Industrial Tribunal are the fact finding tribunal. They are sometimes referred to as the Industrial Jury. They hear the witnesses, and see them examined and cross-examined. We do not have that advantage. It is seldom that evidence is adduced before us. Therefore once the Industrial Tribunal has found the facts, it is difficult, if not impossible, for this Appeal Tribunal to interfere with those findings. We do not have the material to do so and it is not our function to do so. Our function is to entertain appeals from the Industrial Tribunals if, and only if, it can be shown that there is an arguable case, that the tribunal went wrong in law. That of course can include showing that the tribunal were perverse in that they reached a decision either with no evidence to support it or which was a decision which no reasonable tribunal could have reached properly directing itself upon the law.The appellant has been asked to provide a skeleton argument, and in a brief letter dated 2nd February 1996 he has done so. He says this:
"I will argue that the decision of the Ashford Regional Tribunal was made with total disregard for justice and strongly influenced by political considerations.
The Chairman was aware that a full hearing would involve evidence against Crown employees involved in my dismissal."That is a far cry from the grounds contained in the Notice of Appeal. Nevertheless, we have considered the argument and if there was anything in it we would entertain an application to amend the notice in order to incorporate it. But, in our view, there is nothing in the argument and neither it nor the grounds of appeal contain any points of law. We have sought to adduce from the appellant who has appeared before us in person, and who has addressed us with moderation and economy, what point of law he has. He has frankly said that he does not have a point of law. He has told us that he has sought a good deal of advice about it, which we are glad to hear because there are agencies which would assist him if they could in the presentation of an appeal. No person need appear before us unassisted if he or she has a good case to present. But we are bound to say that we cannot see any point of law. We have all read the papers. If we saw any prospect of the appellant advancing a point of law we would seek to identify it for him and assist him in presenting it. But we have to say that there is none.Accordingly we have to dismiss the appeal at this stage.