Cole v Chine Breeze (Westbourne) Ltd [1997] UKEAT 1133_97_0312

EAT
Cole v Chine Breeze (Westbourne) Ltd
[1997] UKEAT 1133_97_0312 · 1997-12-03

JUDGE PETER CLARK :

This is an appeal by the applicant, Mrs Yvonne Cole, before an Industrial Tribunal sitting at Southampton on 3rd February 1997, against that tribunal's decision to dismiss her complaint of unfair dismissal against her former employer, the respondent, Chine Breeze Court (Westbourne) Ltd. Extended reasons for that decision are dated 5th March 1997.Her subsequent application for a review of that decision was summarily dismissed under the provisions of Rule 11(5) of the Industrial Tribunal Rules of Procedure by the Chairman, Mr Belcher, in a decision dated 1st May 1997.The appellant commenced employment at the Chine Breeze Court Nursing Home in the early 1980's as an auxiliary nurse. In 1987 Roger and Helen Collins ["Mr and Mrs Collins"] took over the running of the business. The appellant's employment continued.In 1994 she was suffering from a back problem. A cleaning job fell vacant at the Home and after discussion with Mr and Mrs Collins she took that job.Subsequently she was asked from time to time to take on additional duties helping with auxiliary nursing and cooking. Although she took those duties on the tribunal found that they were getting on top of her.From June 1996 she was off sick. We come then to 19th August 1996.In her Originating Application presented on 18th September 1996, the appellant contended that during a telephone conversation with Mrs Collins on that day she was effectively dismissed.By their Notice of Appearance the respondents agreed that a telephone conversation took place that day, at about mid-day, but it was their pleaded case that during the conversation the appellant said that she would not be returning to work and enquired of Mrs Collins what notice was required. In the event, on the respondents' case, it was agreed that the employment would end on 28th August, which was the appellant's next pay day, and the date on which her then current sick certificate expired.On the following day Mr Collins wrote to the appellant, repeating the respondents' version of the previous day's conversation and recording the appellant's resignation.On 21st August the appellant telephoned Mr Collins. On the respondent's case she did not dispute Mr Collins' version of the previous day's conversation in his letter. She never replied to Mr Collins' letter in writing.In the circumstances the respondents denied dismissing the appellant.When the matter came before the tribunal on 3rd February 1997, the appellant appeared in person; the respondents were represented by Counsel.The tribunal heard evidence from the appellant on the one side and Mr and Mrs Collins and the Matron, Mrs Campbell-Smith, on the other.The first question to be decided was whether or not the appellant had been dismissed on 19th August. There was complete conflict of evidence. The tribunal preferred the respondents' witnesses' accounts and found that there had been no dismissal.In reaching that finding of fact, the tribunal were impressed by the fact that the appellant had not disputed the respondents' version of events contained in two letters from Mr Collins in writing, and further accepted the matron's evidence that she had overheard part of the conversation between the appellant and Mrs Collins on 19th August, and that as soon as that conversation ended Mrs Collins informed the Matron that the appellant had resigned.Following promulgation of the tribunal's extended reasons on 5th March 1997, the appellant consulted solicitors who prepared a statement on her behalf which was used as the basis for the review application.In that statement she complained that she had only received the respondents' bundle of documents and witness statement of the respondents' three witnesses two minutes before the hearing commenced on 3rd February. Further, she attached copies of telephone accounts purporting to show, first, that she telephoned the Home at 16.47 hours on 19th August, not mid-day as the respondents' witnesses had said in evidence. That was significant because, she claimed, Mrs Collins had said in evidence that she had told Mrs Leaver, the Cook, that the appellant had resigned, and the Cook always left work at mid-day to catch her bus home.We should add that today Mrs Cole has told us that Monday, and 19th August was a Monday, was the Matron's habitual day off. However, she also tells us that she did not put to Matron in cross-examination that she was not present at the Home so as to be able to overhear the conversation between the appellant and Mrs Collins on 19th August.In her statement the appellant also referred to the fact that she had telephoned the Home on 21st August, although that was never in dispute. It was the content of that conversation which was in issue, the appellant claiming that she had challenged the content of Mr Collins' letter of 20th August; the respondents' evidence was that she did not demur from its contents.The Chairman considered the matters raised and dismissed the review application for the reasons given in his review decision.In addition the appellant has appealed to this tribunal. Mrs Cole has appeared before us today, and relies principally on the submissions contained in a skeleton argument prepared on her behalf by her solicitor.In a nutshell, she contends that she did not get a fair hearing before the Industrial Tribunal, and on that ground, invites us to interfere with the tribunal's decision, set it aside and direct that the matter be remitted to be heard for a second time by a fresh Industrial Tribunal.The particular points made in the skeleton argument are these. First of all it is said that under Rule 8(5) of the Industrial Tribunal Rules of Procedure where:
"... a party wishes to submit representations in writing for consideration by a tribunal at the hearing on the originating application, he shall present his representations to the Secretary not less than seven days before the hearing and shall at the same time send a copy to each other party."
It appears to be contended that by providing the witness statements of the respondents' three witnesses on the morning of the substantive hearing of this case, the respondent was somehow in breach of that Rule.That is not correct. The witness statements of the respondents' witnesses were no more than that, they were not relied on as written representations; the witnesses were called to give oral evidence.Secondly, there is complaint about the late service of the witness statements in any event.As to that there is no specific Rule within the tribunal's Rules of Procedure, that witness statements need be exchanged before a hearing. From time to time a direction to that effect is made by the tribunal by way of an interlocutory order, but no such order was made in this case.Thirdly, it is said that the late delivery of the respondents' bundle of documents put the appellant at an unfair disadvantage, and that such late production offended the rules as to discovery.So far as that submissions is concerned, we have asked Mrs Cole what was in the relevant bundle, and apart from copies of letters which had been sent to her by Mr Collins, we have not been told of any other documents which form the material part of the evidence in this case, and which took her in any way by surprise. So far as discovery is concerned, again no order for discovery was made prior to the substantive hearing.Finally, it is suggested that bearing in mind that the appellant was unrepresented and the respondents represented by Counsel, in fairness the tribunal ought to have exercised its powers granted by Paragraph 13(7) of the Industrial Tribunal Rules and granted an adjournment so that she could prepare herself to present her case.We have asked her and she tells us that she made no application for an adjournment. Whilst we fully appreciate the difficulties of parties in person appearing for the first time before an Industrial Tribunal, in the absence of such an application we do not think the tribunal can be criticised for proceeding with the hearing.In all the circumstances, having considered the arguments advanced on behalf of the appellant, we are quite unable to discern any arguable point of law in this case. Our jurisdiction is limited to correcting errors of law; we are not here to provide a second bite of the cherry for disappointed litigants. Accordingly, the appeal must be dismissed.