Obasa v London Underground Ltd [1996] UKEAT 947_95_3001

EAT
Obasa v London Underground Ltd
[1996] UKEAT 947_95_3001 · 1996-01-30

JUDGE C SMITH QC:

This is an application (ex-parte) by the Applicant, Mr Obasa, for leave for the matter to proceed to a full hearing of his appeal against the decision of the Chairman of the Industrial Tribunal sitting alone on 6 June 1995 at London (South) when the learned Chairman decided that the Applicant's application for compensation for unfair dismissal was out of time, by application of Section 67(2) of the Employment Protection (Consolidation) Act 1978. Accordingly he held that the Industrial Tribunal did not have jurisdiction to entertain Mr Obasa's complaint, as appears from the extended reasons given by the Chairman.The Applicant had been employed by London Underground as a booking clerk from May 1983 until his dismissal on 23 December 1994, on the grounds of gross misconduct. He submitted an Originating Application by way of complaint for unfair dismissal which was received by the Central Office of the Industrial Tribunals on 23 March 1995, that is to say one day out of time.It is apparent from the extended reasons given by the Chairman that the Applicant did not appear at the hearing before the Industrial Tribunal, but instead submitted written representations as to why his application was just one day out of time which were, we are quite satisfied, considered by the Chairman as appears from the extended reasons.There were two reasons put forward by the Applicant before the Chairman. The first reason was that he was innocent of the allegation of gross misconduct and accordingly, confident that his internal appeal would succeed, and it is apparent from certain findings made by the Chairman in paragraph 2 of the reasons, that the appeal hearing was delayed so that it was not finally dealt with until 16 March 1995.The second reason that was put forward by the Applicant before the Chairman was that he was not aware that an application could be made to an Industrial Tribunal until the internal appeal hearing had been concluded. It is clear from paragraphs 3 to 7 of the extended reasons that the learned Chairman gave careful consideration to these alleged reasons for the application being one day out of time.The Chairman noted that the Respondents, who were represented before him, relied upon a letter written by the Applicant on 19 April 1995 to the Employment Relations Manager of the Respondents as indicating that there was, by that time at any rate, an understanding on the part of the Applicant of the time limits applicable to an unfair dismissal application and also, as is apparent from that letter, that the application had to be made from the date of dismissal rather than the date by which all internal appeals have been exhausted. The Chairman however, correctly noted in the decision that that letter was written after the Originating Application had been lodged on 23 March 1995, one day out of time.The Chairman then proceeded in paragraph 4 to set out the correct test under Section 67 and went on to consider the authority to which he was referred, namely McDonald v South Cambridgeshire [1973] IRLR 308 and correctly concluded that the fact that there is a contractual right of appeal does not alter the effective date of termination. The learned Chairman went on:
"6. ... This is a well settled point of law, and the fact that in the present case the Applicant was pursuing his internal appeal did not alter the effective date of termination which was December 23 1994."
The learned Chairman proceeded in paragraph 7 specifically to consider the reasons which had been put forward by the Applicant in order to decide the crucial question before him, namely whether the Tribunal was satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. It is quite apparent that the learned Chairman was asking himself exactly the right question.On consideration of the two reasons which were put forward he held firstly that the Applicant's belief in the likelihood of success of an internal appeal could not possibly be a ground which could have the result that it was not reasonably practicable to present the complaint in time so that he rejected that ground.He went on to consider the other ground put forward and he dealt with it in this way. He decided that the fact of the Applicant's belief that he could not pursue his claim until the appeal process was exhausted, even if genuinely and reasonably held, was not a ground for concluding that it was not reasonably practicable because, as the Chairman put it:
"7. ... that situation ceased to obtain before the expiry of the three month period."
In our judgment that must amount to a clear finding of fact by the Chairman that by 16 March 1995 the Applicant knew that the appeal procedure was exhausted so that he must at once present his Originating Application, by way of complaint, on the grounds of unfair dismissal.In our judgment, it is clear from the decision of the Court of Appeal in Palmer v Southend-On-Sea Borough Council [1984] ICR 372 at page 385, that the decision which the learned Chairman had to make was pre-eminently one of fact. In that case at page 385, the Court of Appeal, having earlier approved the dictum of Browne-Wilkinson J. in the case of Bodha v Hampshire Area Health Authority [1982] ICR 200, concluded as follows:
"What, however, is abundantly clear on all the authorities is that the answer to the relevant question [and that is of course the very question with which the learned Chairman had to deal] is pre-eminently an issue of fact for the industrial tribunal and that it is seldom that an appeal from its decision will lie. ..."
The Court of Appeal then went on on the same page at F to list the kind of possible relevant considerations, not in a way that was intended to be exhaustive, which an Industrial Tribunal must have in mind when considering this particular question.Having looked at the guidance from the Court of Appeal in Palmer and at the Chairman's decision with care, we are satisfied that the learned Chairman took into account all the relevant matters and considerations which related to the grounds put forward before him by the Applicant and was justified in concluding that neither of the grounds put forward could amount, on the facts found by the Chairman, to a sufficient reason for it not being reasonably practicable for the complaint to have been presented before the end of the period of three months.In our judgment the Chairman was justified in reaching that conclusion as to what was ultimately a question of fact for him to decide for the reasons we have already stated, and we can see no arguable ground of appeal.We have borne in mind that it is only for the Applicant to show an arguable ground of appeal at this stage and that is the test we have been applying.We are satisfied here for the reasons which we have stated, that there is no arguable ground of appeal raised by the Applicant and accordingly the application will be dismissed.