MR A J WILLIAMS v DELIVERIES DIRECT LOGISTICS LTD [1999] UKEAT 1399_98_1606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1399_98_1606Case No Appeal No. EAT/1399/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A J WILLIAMSAPPELLANTDELIVERIES DIRECT LOGISTICS LTDRESPONDENT
Before
His Honour Judge WilkieDate 16 June 1999
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE WILKIE QC : This is an appeal by Mr Williams against the decision of the Employment Tribunal sitting at Birmingham on 20 th July 1998 refusing his claim effectively for a redundancy payment and for unlawful deduction of wages and holiday pay entitlement. Mr Williams has not attended in person today. He was aware of the hearing date as he communicated with this Court indicating his wish to take advantage of the ELAAS scheme and representation, but he not being here, that scheme is not available to him.[2]Mr Williams made application to the Employment Tribunal on 2 nd December 1997 claiming a redundancy payment and also claiming unclaimed wages for three weeks and holiday pay that had not been paid. That was a claim made against a company called Deliveries Direct Logistics Ltd.[3]On 12 th November 1997 they had written a letter:
"To whom it may concern, This is to confirm that due to the liquidation of Deliveries Direct Logistics Ltd, Mr Andrew Willaims has not been paid the last 3 weeks wages due to him. The amount due to him is:- Week 30 w/e 31/10/98 £210.00 Week 31 w/e 07.11.97 £210.00 Week 32 to 12.11.97 £126.00 £546.00 He is also due 2 weeks holiday pay @ £210.00 per week."
[4]On 31 st March 1998, the managers and receivers of this company, Independent Management Solutions Limited, wrote to the Employment Tribunal office to this effect:
"Deliveries Direct Logistics Limited ceased trading towards the end of 1997 … no funds or assets will be available for distribution to creditors and therefore a Voluntary Liquidation of the company is not possible. The directors are awaiting petitions to be issued by creditors for a Compulsory Winding Up of the company and if no petitions are received it is the directors intention to apply to Companies House to be struck off the register. No representative will be in attendance at any hearing and the company does not dispute the debt."
[5]Thus, on the face of it, Mr Williams' claim as far as unpaid wages and unpaid holiday pay was not disputed.[6]The hearing of the Employment Tribunal took place on 20 th July 1998. Neither side was represented, but the learned Chairman did acknowledge receipt by the Employment Tribunal office of the letter of 31 st March 1998, but does not refer in paragraph 3 of his decision that that letter concluded that the debt was not disputed.[7]On the basis that Mr Williams had not attended on 20 th July 1998, the Chairman decided to proceed with the hearing in the absence of the parties and because Mr Williams had taken no steps to attend the hearing he dismissed his claim under all heads.[8]The decision records in it last paragraph:
"6 The applicants have a right to apply for a review of this decision but before any review would be granted they would have to show good cause for failing to attend at this hearing."
[9]Mr Williams, who was not legally represented, did not apply for a review but rather within the requisite time launched an appeal to this Employment Appeal Tribunal, to the effect that he had not received notice of the tribunal hearing date of 20 th July 1998, though in fact in his appeal he refers to it as being 30 th July 1998. Furthermore, Independent Management Solutions Limited furnished a letter to Mr Williams which he appended to his appeal dated 19 th August 1998 to the effect that they confirmed that they had not been informed about the tribunal hearing on 20 th July 1998 either.[10]It seems to us that it is an unfortunate situation where Mr Williams made a claim at least part of which was not in dispute and, for a reason, which appears to be that he did not receive notice of the hearing, it was dismissed because he did not attend. We are far from being satisfied that the Employment Tribunal Chairman's decision was necessarily wrong in law or perverse, but before we made any final determination on whether this appeal should be allowed to go to a full hearing, it seems to us sensible that we should first give Mr Williams the opportunity to apply to the Employment Tribunal for a review of the decision to dismiss his claim on the basis that Mr Williams, being a party, did not receive notice of the proceedings leading to the decision. It seems to us that were he to do so, having initially, perhaps erroneously, thought the way forward was to appeal to this tribunal rather than to apply for a review to the Employment Tribunal, a Chairman may well be sympathetic to such an application for review and may well grant it. However, that is not a matter for us.[11]The fact that Mr Williams has not attended today does not aid his cause and therefore we are putting him on a strict timescale in order to put matters to right.[12]The reasons for this decision will be sent out as and when they have been prepared. We direct that Mr Williams has 14 days from the date of which this decision is sent to him to make application by way of review to the Employment Tribunal on the grounds that he did not have notice of the hearing of 20 th July 1998. At the same time and within that period he must notify this tribunal that he has made such an application for review. If this tribunal does not receive from him notification that he has applied for a review within that period, then this appeal will be dismissed.