Firlands Training Ltd v Fletcher [1998] UKEAT 950_97_1106

EAT
Firlands Training Ltd v Fletcher
[1998] UKEAT 950_97_1106 · 1998-06-11

JUDGE J HULL QC:

This is an appeal to us by Firlands Training Ltd represented by Mr West against decisions made by the Industrial Tribunal sitting at Southampton. First of all to refuse to extend time for the service of the Appellant's notice of appearance. Secondly, to proceed at the hearing having received further representations without adjourning the matter and, again, extending time for entry of appearance.The history of the matter is that Mr Fletcher, the Respondent to the appeal and the Applicant to the Tribunal, who is a gentleman in middle years, was employed by Firlands Training as a training manager and sales and marketing representative and he was rewarded partly by salary and partly by commission. According to him his employment with the Appellants began on 8 February 1993, in the sense that he was then employed by the predecessor company, and he said that his employment was continuous and went on until he finally resigned when his commission was not paid. That was in February 1997. His commission had not been paid, he said, for some months. There was a dispute about the amounts. He said that his contract was in effect repudiated. The conduct of the employers was such that he, Mr Fletcher, was entitled to resign and he did that by a letter saying that he was resigning on 14 February 1997. His commission had not been paid, he said, since 6 December 1996.Having launched his application, which he did on 11 February 1997, complaining that he had been unfairly dismissed and that he was owed wages in the sense which the Employment Protection Act stipulates, he was then in a position of having launched the proceedings and the Respondents were required to put in their IT3, (Notice of Appearence), within 21 days of the receipt of the Notice of Application. It was received by the respondents, they say, on 14 February, that is to be seen at page 12, our papers, paragraph 5, (2). The initial application, says the Chairman in his findings of fact, was received by the Appellants on 14 February. So they had 21 days from then to put in their IT3.Indeed Mr Doyle, the manager of the Appellants, did sign an IT3 on 3 March. That is to be found at page 24 of our papers. It is a fairly primitive document, I do not say that offensively but it is a handwritten document, and it does say, to be correct, that the employment began not in 1993, as I said, but on 25 March 1995. That is not elaborated in anyway but is simply in the appropriate box on page 24.On page 25, in a rather variable hand, is written the following:
"Mr D. Fletcher after very detailed written explanations re commission payments (for which he was paid more than his entitlement wrote a letter accusing the company of wishing to terminate his services.
He failed to comprehend his losses and could not accept the facts he was provided with.He decided to write a letter and without any further discussion stopped his work and left the company.

Correspondence will be produced in full."

Mr Doyle signed that on 3 March 1997. One would have expected that to be sent off immediately but apparently for some reason it was not. Any explanation for that would, in so far as we are concerned, be pure speculation. The IT3 was received on 18 March, in other words 10 or 11 days out of time, by the Tribunal.A letter was written to the Appellants from the Tribunal, this is dealt with by the Chairman in his reasons, telling them that the Notice of Appearance was late and asking them to give reasons why time should be extended.On 3 April, Mr Doyle, of the Appellants, "telephone the Tribunal office and said that he had no excuses as to the the late Notice of Appearance..." but nonetheless they, the Appellants, wished to attend... The Chairman then considered the matter, as best he could at that stage and having been told that there were no reasons but the company wished to attend, he said:
"As you have not submitted any valid reasons as to why a Chairman should extend time for bringing the Notice of Appearance the Chairman refuses to extend the time and the case will proceed on the basis that a Notice of Appearance has not been entered, that is, as an un.s...ard case in which your company will not be able to take part. Representatives will be able to attend as members of the public."
That was a perfectly courteous answer because all that Mr Doyle asked was to attend and he said he had no excuse. Well, what had been asked for was reasons and Mr Doyle obviously had another think about this because, having left the matter another fortnight, he wrote a letter on 28 April which we find at paragraph 6 in our bundle.This letter, we are told, was not received by the Tribunal or read by the Chairman untili the actual day of the hearing, which took place on 1 May. It is a most improper letter to have written. It starts off by threatening and abusing the Chairman:"It is of immense concern" - writes Mr Doyle, "...that you as Chairman have ruled that our company is not able to take part in the tribunal fixed for Thursday 1st May.Over many years experiences of tribunals within this company, we have never had a chairman except a late appearance," ... he must mean fail to accept a late appearance) " and it is a disgrace sir, that you should not wish to hear our reply to the statements, which you intend to hear from Mr Fletcher and his representative.Common justice requires our compoany's case to be heard and needless to say we shall be taking further action for an appeal as we have already made strong representation both in writing and by telephone to your tribunal staff without avail.To receive a letter on your authority that we can attend as members of the public" which was exactly what he he had asked to do "is a disgrace to the legal profession of which you are a member."It goes on in similar charming vein to suggest that the Chairman will probably be the subject of a complaint to the Law Society. A most improper complaint to make to any Judge or judicial person.No court is required to consider matters which are put to it in a contemptuous way. Nor is a person who is in contempt of a court entitled to be heard. It is perfectly true though, in justice to Mr Doyle, to say that he went on to consider various matters of merits. He wrote about those and those therefore came to the attention of the Chairman when he read this letter during an adjournment from his hearing. Mr Doyle set out his case, which was that Mr Fletcher was not, on the true view, entitled to be paid commission. Indeed, as he said in the last but paragraph of this fairly long letter:

"...it is considered that he has been overpaid commission."

So that was what Mr Doyle wrote. Then he instructed solicitors on behalf of the company and they wrote on 30 April, apologising for the lateness. The firm of Hutton's Solicitors wrote of the following matters:
"We have been consulted by the Respondent ... following the Tribunal's decision by letter dated 14 April 1997 to refuse to extend the time to enter a Notice of Appearance and thereafter to proceed with a hearing of this application tomorrow 1 May 1997.
Contrary to the handwritten reply to your letter of 26 March 1997 it appears that there were good reasons for making the application:"So they are saying: "our client was wrong in what he had said".
"1 To begin with there may be an issue as the date when the Notice of Appearance was returned and we would be grateful if you would confirm the date when this is recorded according to the Tribunal.
2. Upon receipt of the application the matter was referred to an external payroll company to check the calculation of claimed commission payments as the external payroll company is responsible for matters of that nature. On its return after 22 February 1997, Mr Doyle had left the country and was in Marbella. Immediately upon his return the Notice of Appearance was prepared and submitted in the belief that it was being returned in time, the initial application having been received on 14 February 1997.The Notice of Appearance itself indicates a full and substantial defence namely:

(1) There was no unlawful deduction of commission payments; and

(2) The only matter pleaded, namely a wrongful deduction of commission, is not only true" they must mean 'not true' "but even if accepted would not justify a finding of constructive dismissal."Having said that they advised their client to appeal they then go on to say:
"We regret that this letter is sent at very short notice but we have only recently been consulted in connection with this matter which in any event has been brought on for hearing very rapidly.
In view of the limitation against formal representations in the hearing itself, we are not instructed to attend, but would ask the Tribunal to give due consideration to the request for an adjournment on the basis of this letter."So, there it was, and the hearing was to go on. Now we look to see what happened at the hearing.

The Chairman had received