MR ARMONDO J P MENDES v GOURMET INTERNATIONAL [2000] UKEAT 422_00_1207

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 422_00_1207Case No Appeal No. EAT/422/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR ARMONDO J P MENDESAPPELLANTGOURMET INTERNATIONALRESPONDENT
Before
Mr Justice Keene Mr A E R Manners Mrs M T ProsserDate 12 July 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR JUSTICE KEENE : This is a preliminary hearing to consider whether this appeal raises any reasonably arguable point of law. Mr Mendes brought a complaint for breach of an agreement relating to the termination of his employment. He had been employed by the respondent as the financial controller of the company in which he was also a shareholder as was his wife. His employment was terminated by an agreement in writing, one of the terms of which concerned the sale of his shares to the respondent. That read as follows:
"We will also undertake to arrange the purchase of your shares in the company, within 6 months from the termination of your contract, at no less than £1.50 per share, until that time any dividends due will be added to the value of the shares."
There seems to be no dispute that the appellant signed that agreement and that it embodies terms agreed between the parties. Mr Mendes' complaint to the tribunal was that he had not received dividends on the shares in accordance with that agreement.[2]The Employment Tribunal found that the appellant had sold his shares on 30th September 1998, within the six month period, and the Register of Members of the Company duly recorded this transfer in early October. At the Annual General Meeting on 23rd October 1998 dividends were declared in respect of the year ending 31st May 1998. In November the dividends were paid but not to the appellant. The Employment Tribunal concluded:
"In our judgment, on the proper construction of the agreement between the parties, what is meant by the phrase in the agreement "
Any dividends due" is a dividend which is due because the shareholders in annual general meeting have approved it." They consequently concluded that there was no sum due to the appellant in respect of these dividends. They also concluded that the appellant was not entitled to claim in respect of the shares held in the name of his wife and so they made no adjudication on the merits of that claim.[3]The appellant now seeks to challenge that decision.[4]The first problem which he faces is this: his Notice of Appeal to this tribunal was lodged on 21st February 2000, while the decision of the Employment Tribunal was sent to the parties on 9th July 1999. By Rule 3(2) of the EAT Rules 1993, there is a 42 day time limit on the institution of appeal proceedings before the Appeal Tribunal. The Notice of Appeal in the present case was therefore out of time by about six months. There is a power which we possess to extend time, but this is a power to be exercised only if good reason for the delay can be shown. Otherwise the time limits are to be strictly observed.[5]No good reason for the delay has been made out by Mr Mendes when this point was put to him this morning. He explained that he had sought to start civil proceedings in the County Court concerning his dividends after the Employment Tribunal decision, but that the respondent was raising an argument about res judicata . It was then he decided to appeal to the Employment Appeal Tribunal.[6]I regret to say that we do not regard that as being a good reason for there being any extension of time in this case. The appeal is therefore out of time and on that basis alone will be dismissed.[7]We would only add as to the merits of the appeal that the tribunal's decision seems to us to have been a proper one on the basis of the documents put before it at the hearing. Subsequently the appellant sought to produce additional evidence in the shape of the share certificates. He had had these certificates all along, but had not produced them at the hearing before the Employment Tribunal. The Chairman consequently rejected a request for a review of the decision and the Chairman did so, on what seems to us to have been a proper basis, namely that the documents had been available to the appellant at the time of the hearing, and he could have produced them at the appropriate time then.[8]Whether the appellant has a claim for dividends based on the endorsements on those share certificates is not a matter on which the Employment Tribunal made any decision, nor do we make any decision on that. If the appellant wishes to pursue any claim on that footing in any court or tribunal, that is entirely a matter for him. Equally, the Employment Tribunal did not make any decision about his wife's entitlement to dividends under the endorsement of the share certificates or on any other basis. Consequently, it may be that she is in a position whereby she can pursue a civil claim. We do not seek to encourage that and we can express no view on the likely outcome of any such civil proceedings. That is not a matter which falls within our jurisdiction. But so far as the matters which do fall within our jurisdiction are concerned, the upshot is that this appeal must be dismissed.