Chissick v Chissick [1997] UKEAT 304_97_2507

EAT
Chissick v Chissick
[1997] UKEAT 304_97_2507 · 1997-07-25
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law which is fit for disposal by a full tribunal arising from Dr Chissick's appeal against a decision of an Industrial Tribunal held at Stratford on 18th December 1996. The decision, in written form with extended reasons, was promulgated and sent to the parties on 17th January 1997, and against that decision Dr Chissick has filed a Notice of Appeal within time.The background to the dispute between the parties may be shortly stated. Mrs Chissick was employed by Dr S S Chissick and Associates, pursuant to an arrangement which was agreed between herself and her husband in connection with their divorce proceedings. In paragraph 11 of the undertakings that were given by Dr Chissick in the course of those proceedings, he agreed to employ her:
"As a secretary for not less than 5 years at a salary of not less than the sum corresponding to the single person's income tax allowance from time to time, the Petitioner's [ Ms Chissick ] duties under such employment to be answering the telephone and carry out typing and other duties in the course of the Respondent's [ Dr Chissick's ] business as a Consultant, provided always that the Petitioner shall not be required to work more than a maximum of five hours per day."
This undertaking was given effect to in an executed written contract. That document has been produced to us and was, so we are told and accept, produced to the Industrial Tribunal. That showed an agreement dated 27th March 1990, specifying as payment £3,000 per annum payable monthly in arrears to be increased annually on the date of this agreement in line with the single person's income tax allowance.The arrangement lasted for the five year period, but came to an end as a result, so an Industrial Tribunal concluded, of either of a constructive or a direct dismissal. The Industrial Tribunal's decision arose from a hearing which took place in January 1996. On 13th March 1996, that decision, in extended reasons form, was sent to the parties. It showed that Ms Chissick was entitled to £6,950.00 by way of arrears of pay; £375.00 for unfair dismissal compensation; and £3,892.50 as a redundancy payment, making a total of £11,217.50.The evidence on which the tribunal relied for their conclusion came wholly from the applicant, Ms Chissick and her witnesses, because there was no representation on behalf of Dr Chissick and he had not filed an IT3. Accordingly this was a decision which took place in his absence.When he was made aware of the decision, he promptly asked for the Industrial Tribunal to review their decision, saying that he had never received IT1 and never, therefore, had a proper opportunity of participating in the tribunal procedure.The Industrial Tribunal agreed to hold a review hearing to determine what should be done. Dr Chissick was now largely based in California. He made representations to the Industrial Tribunal asking that the case should not be heard until March 1997. The Industrial Tribunal did not accept that his absence in California justified a delay in the matter. It was the contention made on behalf of Mrs Chissick that he was playing for time. The tribunal had to strike some kind of balance between the interests of the parties and the public interest in justice being done as promptly as is possible.Accordingly, the matter came on for hearing before an Industrial Tribunal on 18th December 1996 in Dr Chissick's absence. Prior to that date, he had produced some written submissions. Included within those submissions, he made a number of points. He asserted on oath that he had not received the IT1; that whilst he was aware of the earlier hearing date, he had not been advised as to where that hearing was going to take place and did not know; and he had not been informed of the nature of the allegations to which he was expected to be responding. He also made a number of points about the facts of the earlier decision, observing that the evidence of the applicant was inconsistent with the written contract, to which I have referred. It was her case before the original Industrial Tribunal that she was entitled to be paid £750.00 per month net. He pointed out that that represented a gross salary in excess of about £12,000 per annum, and that if she was truly an employee, there were grounds for thinking that the arrangement must have been illegal because she was being paid her wages in a net form and that would indicate that if she was an employee there ought to have been the PAYE deductions from a gross figure to arrive at the net sum.The written submissions were sent to the Industrial Tribunal. Dr Chissick said that he sent a copy of them to Ms Chissick on 30th November 1996, so that she should have received them before the hearing was due to take place. She says that she did not receive them, but she was first handed them on 18th December 1996 by the Industrial Tribunal and she had an opportunity to look at them before the case began.Dr Chissick has alleged that the written submissions he made were ignored by the Industrial Tribunal Chairman, but the Chairman has supplied his comments to say that Dr Chissick is wrong, all documents from both parties were admitted and read carefully.We turn therefore to the review decision. The tribunal looked with care at the contact between Dr Chissick and the premises to which the IT1 had been sent. They were of the view that from looking at the Industrial Tribunal records, the IT1 had been sent to 911 Eastern Avenue, Newbury Park, Redbridge in Essex on 2nd October 1995. They observed that Dr Chissick had been in England at the end of October for the wedding of his niece, and there is in addition, a document which shows that Dr Chissick in fact was in the premises on 7th October 1995, because on that date he wrote a memorandum to his former wife in relation to another matter.In paragraph 5 they refer to the fact that Dr Chissick was aware of the earlier proceedings even if he did not know as he says where the proceedings were going to take place; and in paragraph 7 they said this:
"7 In the circumstances as established above, and indeed there are other factors leading in support of this finding, we find that he did receive notice of the proceedings leading to the decision and did receive the Originating Application and we note that he had retained the property at 911 Eastern Avenue throughout. In those circumstances, we see no grounds for actually having a review hearing as we do not find that it falls within paragraph 11 of Schedule 1 of the Industrial Tribunals Rules and Regulations."
In paragraph 8 they go on to say:
"8 Even if we did not reach that decision, it is our view that points raised by Dr Chissick's representations are matters more apposite for an appeal rather than a review and we would not have entertained them on that basis in any event."
Dr Chissick, as I say, appealed against that decision. The first task he has to fulfil is to persuade us that there is an arguable point of law to suggest that the Industrial Tribunal's decision is wrong in law.It seemed to us, on reflection, that he has not succeeded in so persuading us. The real question before the Industrial Tribunal when carrying out a review was to decide whether or not on the facts of this case, Dr Chissick had received the IT1. If he had received the IT1 which would have contained of course the address of the tribunal and notified him of the substance of the claim, then it was his decision and his decision alone, not to participate in the proceedings which took place in January 1996. Therefore, if he had not taken part in those proceedings by choice when he had proper information available to him, it was correct for the tribunal to have proceeded in his absence and correct for the Industrial Tribunal not to have agreed at a review hearing to open the case up for a second hearing. So the critical question for the Industrial Tribunal at the review hearing was, as it seems to us, the question as to whether or not they were satisfied on the balance of probabilities that Dr Chissick had received the Originating Application.For the reasons which they gave, it seems to us that that was a question of fact for them and we are not persuaded that it can be said that they erred in law in arriving at their conclusion. They had a difficult task to perform because Dr Chissick was not there. They cannot be criticised, in my judgment, for failing to agree to an adjournment of the hearing. That was a matter falling essentially within their discretion and they cannot be faulted for the way they exercised it. But having not appeared at the hearing, it seems to us, Dr Chissick had to rely upon his written representation which the tribunal indicated, it had taken into account.Accordingly, not being persuaded that there is an arguable point of law, we must dismiss this appeal.Application to appeal to the Court of Appeal by the appellant is refused, because in our view there is not arguable point of law.