Ganendran v Kentucky Fried Chicken (GB) Ltd [1997] UKEAT 528_96_0402

EAT
Ganendran v Kentucky Fried Chicken (GB) Ltd
[1997] UKEAT 528_96_0402 · 1997-02-04

JUDGE PETER CLARK :

This is an appeal by the Applicant against an order of the London (South) Industrial Tribunal sitting on 25 March 1996, refusing his application to postpone the substantive hearing of his complaint of unfair dismissal against his former employers, Kentucky Fried Chicken. The Tribunal went on to hear the complaint on that date and dismissed it. Extended Reasons for their decision are dated 15 April 1996.

Procedural History

The Applicant was dismissed on 28 August 1995. On 28 November 1995 he presented his complaint of unfair dismissal.On 4 January 1996 the Respondent's Solicitors applied for an extension of time to lodge the form IT3.On 8 January 1996 the Tribunal extended time for that purpose to expire on 19 January 1996.On 16 January 1996, so the Respondent's Solicitors say, they sent a letter enclosing a Notice of Appearance to the Industrial Tribunal.On 2 February 1996 the Tribunal sent out a Notice of Hearing of the substantive matter to take place on 29 February 1996.On 5 February 1996 the Respondent's Solicitors applied for a postponement of that date and on 13 February the Tribunal replied refusing that request on the ground that they had not entered a Notice of Appearance.On 14 February 1996 the Respondent's Solicitors faxed the Tribunal with a copy of the form IT3 repeating the request for a postponement in that a key witness was unavailable and stating that they had sent the Notice of Appearance by First Class post under cover of a letter of 16 January 1996. Having received that letter on 21 February the Tribunal granted that application for a postponement.On 28 February 1996 the Tribunal sent out a Notice giving a fresh Notice of Hearing dated 25 March.On 5 March 1996 the Applicant's Solicitors sought a postponement of that date. They complained that they had only received the Respondent's Notice of Appearance on about 20 February and that they needed time to take instructions and properly instruct Counsel.On 8 March 1996 the Respondent objected to that application.On 14 March, by letter of that date, the Tribunal refused the Applicant's application for a postponement on the grounds that the Applicant had had sufficient time to prepare his case.On the following day, 15 March 1996, it appears in error, the Industrial Tribunal sent out a further Notice of Hearing for 19 April.On 20 March 1996 the Respondent's Solicitors, by fax, queried the Notice of Hearing issued on 15 March. They said that they were ready to go on 25 March and that they were in difficulties on 19 April. They asked that the 25 March date be retained. Meanwhile there had been no response from the Applicant's Solicitors.Also on 20 March the Respondent's Solicitors sent a copy of their paginated bundle to be used at the Industrial Tribunal hearing to the Applicant's Solicitors. For the most part, those documents were already in the Applicant's possession.On 21 March 1996 the Industrial Tribunal telephoned the Applicant's Solicitors, having themselves been put on notice by the Respondent's Solicitor's fax of 20 March, and informed them that there had been a mistake so far as the Notice of 15 March was concerned and that the original date, 25 March stood as the hearing date.The Applicant's Solicitors were unhappy with that turn of events and following telephone calls to the Industrial Tribunal they sent a fax dated 21 March in which they asked that the date of 25 March be vacated on the grounds that they had relied on the new Notice of Hearing; that Counsel originally instructed, had engaged himself on another matter and that the Applicant, who was then unemployed, was unable to fund new Counsel. At the end of that fax they gave notice that if the adjournment was not granted on paper they would instruct other Counsel to make an application for the adjournment at the hearing on 25 March.We should also add that on 22 March 1996 the Industrial Tribunal wrote to the Respondent refusing to vacate the date of 19 April, apparently without considering that there had already been a date, 25 March notified to the parties.Before the Industrial Tribunal on 25 March the Applicant was instructed by Counsel, Miss Ayub, who was not Counsel originally instructed in the case and the Respondents appeared ready to proceed, themselves represented by Counsel.The application for an adjournment was made by Miss Ayub and rejected by the Industrial Tribunal for the reasons which appear at paragraph 2 of the Extended Reasons.
"2. The Applicant applied for an adjournment but that was refused on the 14 March. It is true that the day before in error a Notice of Hearing for Friday, 19 April, for this case had been issued but through the same post there had arrived at the solicitors the refusal of an adjournment and the notice that this case would proceed on the 25 March. A member of the Tribunal staff spoke to the Applicant's solicitors and confirmed the 25 March was the correct date. The other ground for application for an adjournment was that there were a deal of papers which solicitors for the Applicant wanted from the Respondent. We considered that but bore in mind firstly that all the papers in this case save only for the typed note of the appeal hearing had been in the Applicant's possession for many months, certainly some four or five months before this hearing and there was little else that solicitors for the Applicant could properly get from the Respondents. Secondly we bore in mind that they seemed to have done nothing about it since receiving the Notice of Appearance on the 20 February. That being so and the Respondents being ready we saw no reason why this case should not go ahead and we therefore refused the adjournment. Miss Ayub then telephoned her instructing solicitors seeking instructions for the rest of the hearing and returned to tell us that solicitors were not in funds for the full hearing of this case and therefore she was obliged to withdraw. We note now that Miss Ayub dealt with a difficult situation in a most professional way and there is not the slightest criticism attached to her in respect of her role in this."
The Tribunal then went on to consider the merits of the case, having first carefully explained the procedure to the Applicant, who represented himself after Miss Ayub withdrew.

The Appeal

Mr Rashid first takes a point which was not argued by Counsel on behalf of the Applicant below. It is this. Rule 5 of The Industrial Tribunals Rules of Procedure 1993 provides:
"(1) The President or a Regional Chairman shall fix the date, time and place of the hearing of the originating application and the Secretary shall send to each party a notice of hearing together with information and guidance as to attendance at the hearing, witnesses and the bringing of documents, representation by another person and the making of written representations.
(2) The Secretary shall send the notice of hearing to every party not less than 14 days before the date fixed for the hearing except -

(a) where the Secretary has agreed a shorter time with the parties."

He submits that the Notice of Hearing for 25 March 1996 was effectively replaced by the Notice given on 15 March for hearing on 19 April. When the Industrial Tribunal member of staff telephoned the Applicant's Solicitors on 21 March to say that the original date of 25 March would stand the Tribunal was in breach of Rule 5 in two respects; first, formal, that is written notice, was not given on 21 March notifying the parties that the hearing date of 25 March was restored; secondly, less than 14 days' notice was given, and there was no agreement by the parties, and in particular by the Applicant, to short notice being given.A preliminary question arises as to whether or not we should consider this new point. Kumchyk v Derby County Council [1978] ICR 1116 . Mr Rashid argues that the point goes to jurisdiction and should be entertained by this Appeal Tribunal. House v Emerson Electric Industrial Controls [1980] ICR 795.We do not find it necessary to decide that procedural question. The point is a bad one. In our judgment the true position is this. On 28 February proper notice of the hearing to take place on 25 March was given in accordance with Rule 5. The further, erroneous notice dated 15 March immediately followed the Tribunal letter of 14 March refusing the Applicant's application for a postponement of 25 March hearing date. By no stretch of the imagination can it be said that the Notice dated 15 March operated to vacate the date of 25 March. Thus, after the error had been pointed out by the Respondent's Solicitors on 20 March, the Tribunal staff corrected the position by withdrawing the second notice of hearing and affirming the first date. No question of a new Notice of Hearing for 25 March ever arose. Accordingly we reject Mr Rashid's first submission.We turn then to what may be termed the merits of the appeal. We are each of us concerned that the situation now before us arose following an unexplained error on the part of the Industrial Tribunal. We simply cannot begin to understand how it could contrive to send out a new notice of hearing the day after a Chairman had refused, in writing, the Applicant's application for a postponement of the fixed hearing date. Speaking for ourselves we should have looked favourably on an application for an adjournment by a party prejudiced by an error on the part of the Industrial Tribunal staff. Indeed, that is, in a different context, a specific ground for review of a Tribunal decision under Rule 11(1)(a) of the Industrial Tribunal Rules of Procedure.However, we remind ourselves that before interfering with an order of an Industrial Tribunal we must satisfy ourselves that the Tribunal has fallen into error in law. Adams & Raynor v West Sussex County Council [1990] ICR 546. We cannot substitute our own decision for that of the Industrial Tribunal absent such an error. Further, we must do justice between the parties. We must resist taking any course other than that laid down for us by Parliament, particularly if that would result in putting the Respondent to the expense of a further hearing simply on the basis that the Industrial Tribunal was in some way at fault.It is common ground that we can only interfere in the circumstances outlined by Arnold J in Bastick v James Lane Ltd [1979] ICR 778, 782 B - C.
"Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."
That passage was expressly approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908, 918 F; per Stephenson LJ.Against that setting we turn to the further submissions made by Mr Rashid. First, he contends that the Tribunal made an incorrect finding of fact in paragraph 2 of the Reasons; that the Tribunal's letter of 14 March and the Notice dated 15 March 1996 arrived in the same post. Assuming in the Applicant's favour that, as their dates suggest, the letters arrived on different dates, what difference does it make to the Tribunal's conclusion? In our judgment, none. Whether they arrived in the same post or consecutively, the Applicant's Solicitors were put on notice that the first hearing had not been postponed on their application and yet a further hearing date had been notified. At the very least they were obliged to make an enquiry of the Industrial Tribunal as to these inconsistencies, as did the Respondent's Solicitors on 20 March. Simply to rely on the second notice, which suited them, is no overwhelming ground for releasing Counsel and ceasing to prepare the case.Secondly, the question of alternative representation. At the hearing on 25 March, Miss Ayub appeared on behalf of the Applicant and renewed his application for an adjournment, as foreshadowed in the Applicant's Solicitors fax letter of 21 March. She did not at that stage indicate that she had no instructions to conduct the full hearing if her application failed. That only happened after the application had been refused, and she had then telephoned her Solicitors for instructions. We do not accept that the Tribunal failed to take into account that Counsel originally instructed was not available on the day, in circumstances where substitute Counsel appeared before them.Thirdly, it is submitted that the Tribunal simply did not consider the prejudice caused to the Applicant by the Tribunal's error. We do not agree. It is clear from paragraph 2 of their Reasons that the Tribunal had in mind the prejudice advanced by Miss Ayub, but looking at the matter in the round they concluded that justice required the matter to proceed. We cannot say that such a conclusion was perverse, in the sense that it was an impermissible option.In our judgment, whilst having sympathy for the Applicant, we are not persuaded that any error of law has here been made out and accordingly the appeal must be dismissed.