TFS Enterprises (Midland) Ltd v Garamszegi [1998] UKEAT 1046_98_1011

EAT
TFS Enterprises (Midland) Ltd v Garamszegi
[1998] UKEAT 1046_98_1011 · 1998-11-10
MR JUSTICE MORISON (PRESIDENT) : This is an appeal by the employers against a decision of an Industrial Tribunal Chairman, sitting on his own, on 28th May 1998. His decision was sent to the parties on 18th June 1998. It was the learned Chairman's decision that the applicant's Originating Application was presented within the statutory time limit.The brief facts may be shortly stated. The applicant was dismissed in October 1997 by letter dated 15th October and received on 17th October while she was on maternity leave, which had commenced on 8th September 1997. She consulted solicitors, completed an Originating Application and signed it on 14th January 1998. The solicitors sent the Originating Application and a letter by fax to the Regional Office of the Industrial Tribunals at Birmingham. Regrettably, the tribunal offices at Birmingham were unable to obtain a copy of the fax as had been transmitted, but the Chairman produced an entry in the records of the Industrial Tribunal which showed that on 14th January 1998 at 4.52 p.m. there had been a communication from the applicant's solicitors, since their telephone or fax number was on this record. The Chairman noted that the entry appeared in a document headed "Power Fail Report" and appeared under a heading "Erased received memory data". The applicant produced a copy of the message confirmation sheet from the solicitor's office, which showed from their records that the fax had been transmitted successfully and recorded as received by the receiving fax machine.The Originating Application did not show the solicitor's name and address, it showed the applicant's name and address only. Service, therefore, was to be effected on the applicant direct. In other words, when communicated with, it was with the applicant that such communications should take place.The tribunal noted in paragraph 3.6 of its decision that:
"No physical copy of the originating application could be traced at the Regional office."
In paragraphs 3.7 and 3.8 the tribunal said this:
"The applicant was told by her solicitor that she should hear from the tribunal within 4 to 6 weeks, but occasionally if there was a back-log it might be a little longer. She did not know she should receive an acknowledgement more quickly.
3.8 On or about 9 March 1998 the applicant contacted the Regional Office and enquired about the progress of the application. She was told it had not been received. She contacted her solicitors who told her it had been sent on 14 January 1998 A further copy of the originating application was sent to the Regional Office by the applicant's solicitor on 9 March 1998."As the effective date of termination was 17th October 1997, a duly presented application on 14th January 1998 would have been presented within time.The Industrial Tribunal Chairman decided that the Originating Application had been presented in due time on 14th January 1998. But, alternatively, in the particular circumstances of this case, he said:
"7. ... if the originating application was not effectively presented on 14 January 1998 it was not reasonably practicable for the complaint to be presented before the end of the three month period, she understandably believing it had been presented in due time, and the presentation on 9 March 1998 was within a reasonable period after the expiry of the three month period which was 16 January 1998."
In an able submission, Mr Hawker on behalf of the employers, says that there has been an error of law by the Industrial Tribunal Chairman. He says that a receipt of an electronic signal is not the presentation of an Originating Application falling within the Rules, accordingly, it was wrong for the learned Chairman to have concluded that the application had been presented in time. Presentation, he says, requires a physical receipt of a document.In relation to the exercise of the Chairman's discretion, he says that that is out of line with decided authority. He said that there are two decisions in particular on which he relied, which showed that the Industrial Tribunals and the Employment Appeal Tribunal take a strict view as to the need for applicants to take all reasonable steps to ensure that documents which they think have sent to the tribunal have in fact been received. In one case it was said by the Employment Appeal Tribunal that to delay for over three weeks was excessive and therefore it was reasonably practicable for something to have been done earlier. Those were both cases where the applicant had chosen post services as the means of communication.It seems to us, with respect to Mr Hawker, that the decision of the Industrial Tribunal Chairman was correct on both grounds. He was faced with a proposition that a fax had been sent on 14th January 1998 and had been received by the Industrial Tribunal on that date. Although there was no physical copy of the Originating Application that could be traced, it did not follow, as it seems to us, that no such document was or had been in existence. In those circumstances, the tribunal was well able to decide that the Originating Application had been presented in due time. It is noteworthy that the Chairman did not himself say that there had been no physical copy made and therefore the submission which was interesting that was raised by Mr Hawker did not, in the circumstances, arise for decision. But in any event, it seems to us, that having regard to the facts as found by the Industrial Tribunal Chairman, the decision that the application on 9th March 1997 was presented within a reasonable period after the expiry of the three month period, is unassailable. The two decision to which reference was made are distinguishable because in this case the sender of the document, that is the solicitors on the applicant's behalf, had received confirmation electronically that the transmission had been effected. That is different from the position where somebody sends a document by post and hears no more, when they do not know whether the document has indeed been received. Here, the applicant was entitled to believe, on the basis of the electronic devices in her solicitor's office, that indeed the document had been received, as indeed it had been. Whether or not it was converted into hard copy is, as we have indicated, not important to the decision which we have to make in this case.Accordingly, we are of the view that the points raised on this appeal are not fit for further hearing at a full appeal, despite Mr Hawker's able submission. Therefore, the appeal will be dismissed.