MR M OLSTOWSKI v UNIVERSAL MANUFACTURING & LOGISTICS LTD [2000] UKEAT 458_2000_0711

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 458_2000_0711

Case No Appeal No. PA/458/2000

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR M OLSTOWSKIAPPELLANT

UNIVERSAL MANUFACTURING & LOGISTICS LTDRESPONDENT

Before

Mr Justice Charles

Date 7 November 2000

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondents MR T SCOTT (Solicitor) Instructed By: Messrs Davies Wallis Foyster Solicitors 5 Castle Street Liverpool L2 4XE MR JUSTICE CHARLES : This is an appeal from an Order of the Registrar dated 15 June 2000, by which the Registrar refused to extend the Appellant's time for appealing. Pursuant to Rule 21 of the Rules of this Tribunal I consider that it is an appeal which I should deal with myself.

[2]The parties are a Mr Olstowski who was the Applicant in the Employment Tribunal and is the Appellant, the Respondent is Universal Manufacturing & Logistics Ltd.

[3]The proposed appeal is against an Order of an Employment Tribunal sitting at Manchester on 30 September, 16 November and 16 December 1999. The Extended Reasons for that decision were sent to the parties on 21 February 1999. The decision was that the Applicant was fairly dismissed and consequently his claim for unfair dismissal was dismissed.

[4]This appeal was due for hearing before this Tribunal on 30 October. By a letter dated 24 October the Appellant wrote to this Tribunal setting out his final submissions on the appeal. The first paragraph of that letter said:

"I wish to confirm that I am unable to personally attend court on Monday 30 October."

[5]That was a day where there were extreme travel difficulties and, as a result, the attempts of Respondent's representative to get here were thwarted. He contacted this Tribunal by telephone and I agreed to adjourn the hearing because of those difficulties.

[6]Following that hearing this Tribunal informed the Appellant that the matter had been adjourned. Attempts have been made to contact the Appellant this morning. He has not appeared to pursue his appeal. Nonetheless and, very properly, the representative of the Respondent did not invite me to simply dismiss the appeal on that basis but went into the substance of the appeal. I say at this stage that for the reasons I will give, in my judgment this appeal should be dismissed.

[7]The Notice of Appeal was received seven days out of time. The approach adopted by this Tribunal to the grant of an extension of time for appealing is set out in the case of United Arab Emirates v Abdelghafar

[1995] IRLR 243

and, in particular, paragraphs 26 to 28 of the judgment of Mummery J in that case. The Court of Appeal has recently decided in Aziz v Bethnal Green City Charter Co

[2000] IRLR 111

that, by following the approach set out in the Abdelghafar case, this Tribunal did not err in law and therefore that that approach is a correct one for this Tribunal to adopt.

[8]Pursuant to that approach, this Tribunal will only relax the 42-day time limit and give an extension in rare and exceptional circumstances. If an Appellant wishes to invite this Tribunal to exercise its judicial discretion to extend time, it is incumbent upon him to provide this Tribunal with a full and honest explanation of the reasons for non-compliance.

[9]The questions that this Tribunal has to ask itself, in considering whether or not to exercise its discretion, are summarised in paragraph 30 of the judgment of Mummery J in the Abdelghafar case and the questions are:(a) what is the explanation for the default;

(b) does it provide a good excuse for default and

[10]Here, in accordance with our Practice, by letter dated 13 April, the Appellant was informed by this Tribunal that his appeal was out of time and he was referred to the relevant Practice Direction and asked to provide an explanation for the delay.

[11]By letter dated 25 April 2000 the Appellant sought an extension of time and proffered an explanation for the delay. The primary explanation offered in that letter was in the second and third paragraphs of it which are in the following terms:

"I was represented at the Tribunal in Manchester by a friend, Mr P. Billington, who has some experience in employment matters. Mr Billington dealt with all matters on my behalf, as I was, and am currently unable to work and on medication for Stress, as a result (I believe) of treatment by my former employer. Following the Tribunal decision, and my decision to request 'extended written reasons' from the Tribunal, Mr Billington advised me that as he was moving offices, and would be involved with other matters outside of his normal routine, the request should be made using my name and address, in order that I received them directly. This was specifically done, but the 'extended reasons' were never sent to my address. Confusion arose between Mr Billington and myself because he wrongly assumed that I had received the extended reasons, and had decided not to pursue the matter."

[12]As can be seen, the nub of the reason put forward was that Mr Billington was moving offices. The inference from that is that he had an office address. Also and importantly that letter indicates or suggests that in the discussion the Appellant says he had with Mr Billington the point that the Extended Reasons should be sent to the Appellant's home address was specifically addressed.

[13]The Appellant's home address is the address shown in his IT1 and in that document Mr Billington is not identified as his representative. It is however, common ground that Mr Billington did represent the Appellant before the Employment Tribunal and there were communications between the Employment Tribunal and Mr Billington relating to the hearing. I am informed by the representative of the Respondent that the normal practice of an Employment Tribunal is that once somebody is representing an Applicant, or party before the Employment Tribunal, they amend their records and send communications to that representative. I have not found a rule concerning that and no such rule was shown to me.

[14]The letter that the Appellant wrote to the Employment Tribunal asking for Extended Reasons does not specifically invite the Employment Tribunal to send the Extended Reasons to his home address. But it is sent from his home address and therefore the letter contains the same address as that in the IT1.

[15]The Employment Tribunal sent the Extended Reasons to Mr Billington.

[16]In his letter of 25 April the Appellant does not say when he got the Extended Reasons from Mr Billington or describe the extent and nature of the confusion he refers to. In that letter he also mentions that he had written to Mrs Blair seeking her advice after he had written to various other people. The Respondent has a copy of the reply the Appellant received from Mrs Blair which indicates that the Appellant wrote to her on 21 March, which was within the 42-day time limit.

[17]The Respondent's Solicitors wrote to the Registrar of this Tribunal commenting on the letter from the Appellant dated 25 April on 15 May. Paragraphs 3 and 4 of that letter are in the following terms:

"3. We attach a copy of the Appellant's letter to the Manchester Employment Tribunal requesting extended reasons for the tribunal's decision. You will note that the Appellant did not specifically request that the extended reasons be sent to him. In the circumstances, it was quite correct for the tribunal to send the extended reasons to the person named on their records as the Appellant's representative, namely Mr Billington. In any event, it is clear that, having received the extended reasons himself in these circumstances, Mr Billington should have taken steps to ensure that the Applicant too had received a copy; if he failed to do so, then that is not a legitimate excuse for late submission of the appeal. 4. The Appellant has failed to specify when exactly he received the extended written reasons. It is apparent, however, that the Appellant would have received a copy of the extended reasons a significant period of time before the expiry of time for filing his appeal. It will be noted that the Appellant refers to having been unable to contact Mr Billington (presumably to help prepare his appeal) and then attempted to seek advice from various sources (again, presumably, in relation to the preparation of his appeal). He then wrote to Mrs Blair on 21 st March 2000, again it would appear seeking to enlist her help in preparing his appeal. It therefore seems quite clear that the Appellant must have received a copy of the extended reasons some considerable time before the expiry of the time limit for filing his appeal. His letter to Mrs Blair was dated some two weeks prior to the expiry of that time limit and was clearly the last in a lengthy series of attempts on the Appellant's part to find an advisor who would help him. Any difficulties that the Appellant may have experienced in obtaining advice is not, we would submit, a legitimate excuse that would justify extension of time in this case. The Appellant should have put his appeal in within time and, if necessary, sought leave to amend his appeal if necessary once he had obtained advice."

Those paragraphs make it clear that the Respondent is understandably seeking further information. as to when the Extended Reasons were actually received, and make the point that the Appellant did not specifically request the Employment Tribunal to send the Extended Reasons to him.

[18]On 1 June the Appellant's final submissions in respect of his application to the Registrar were received by this Tribunal. Those submissions are in numbered paragraphs. Paragraphs 1 to 4 are in the following terms:

"1. The notice of appeal is out of time, but only by a short and unavoidable period, given the exceptional circumstances that I have previously outlined. 2. I am in receipt of incapacity benefit (£50/week) and on medication. If I were able to function normally I would obviously be working. Due to financial difficulties caused by my condition, my son has to cease private education, which he has had for the past eight years. 3. Mr Billington had undertaken correspondence with the tribunal during the course of the case. However, for reasons outlined in my original letter, I specifically wrote to the Employment Tribunal myself, with respect to pursuing the appeal. My letter clearly states my own address, and goes on to state categorically that 'I am requesting the extended reasons' as 'I intend to appeal against the decision'. I have also personally signed the letter. In the circumstances it was wrong for the tribunal to assume that Mr Billington was continuing to act on my behalf, following the decision of the tribunal. It was wrong of the tribunal to send 'extended reasons' to Mr Billington only, when it was I who had made the request. This was the cause of the delay, and is a legitimate reason for the appeal. 4. I am not claiming that difficulties in seeking advice are the reasons for a time extension in this case. Furthermore, when I wrote to Mrs Blair I was not in possession of the extended reasons that I had requested."

And at the end of paragraph 5 the Appellant also says this:

"Finally, once again I apologise for the small time delay in submission of my appeal, but surely the fact that Mr Billington did change offices at this time can be checked, and it can be seen that 'my request' to the tribunal was not communicated to me, which is what caused the problem."

[19]It is to be noted from those submissions that the Appellant maintains the point as to Mr Billington changing offices and also does not give any details as to timings and, in particular, when the Extended Reasons were first received by him.

[20]In the letter to this Tribunal which is treated as his Notice of Appeal and dated 29 June, the Appellant repeats points he had made earlier and on the second page of that letter, which is not in the bundle before me but which was provided to me during the hearing, he says this:

"May I respectfully ask how this can be achieved when the appeal cannot be made without having read the full reasons, and the full reasons have not been sent to the person that requested them? They are in fact laying in the empty office of a friend who has changed offices and been away on business. A fact that can easily be checked or proved."

Again, in that letter, no dates or timings are given by the Appellant as to the receipt of the Extended Reasons either by Mr Billington or himself.

[21]On 23 October the Respondent's representatives posted to the Appellant copies of the relevant electoral roll which show that the address used by Mr Billington and the address to which the Extended Reasons were sent was not an office address but a residential address. Naturally, Mr Billington could have used his home as an office, but if that was the case it does not fully accord with the reasons for the default being advanced by the Appellant which would indicate that Mr Billington was working from office premises and was moving those premises.

[22]The last communication from the Appellant is a letter dated 24 October 2000 which contains his submissions for this appeal. It cannot be known at present whether the Appellant received the information relating to the electoral roll before he wrote that letter. However, I shall assume in the Appellant's favour that he did not receive that information before writing that letter. It is however the case, as was pointed out to me on behalf of the Respondent, that in that letter he does not place any emphasis on the fact that Mr Billington was moving offices, although he does refer to that point in the letter. In that letter he says this:

"My appeal against the Registrar's decision is based on one fact only, that: Unnecessary delay was caused because the E.A.T. [ET] Manchester failed to send 'extended reasons' to myself as requested. Mr Billington had represented me at the EAT Manchester and had dealt with all correspondence on my behalf in relation to my original application. Mr Billington was an old friend but is not legally qualified. Following the E.A.T. decision, I decided that I wished to appeal. Mr Billington appeared reluctant to commit himself to further time and expenses on my behalf, but simply said: 'I will be moving offices in the coming weeks and will be away on business, it would be better if you dealt with matters yourself, so that there are no problems.' Mr Billington prepared the request for 'extended reasons' which I signed and sent to the E.A.T. promptly. I contacted Mr Billington by phone on a number of occasions and told him that I had not received the 'extended reasons' as requested. He told me that they took ages to come, and that I should not 'worry'. Prior to my dismissal and since I have been suffering from Stress and taking medication. I took his comment to mean that I was worrying and bothering him too much, so I put the matter out of my mind and decided to wait for the documents to arrive. Unknown to me the documents had been sent to Mr Billington but not to myself, during which time I was seeking someone to give me free legal advice on the matter so that I could contest the E.A.T's injustice. It was eventually Mr Billington who contacted me, to ask if I had pursued the matter, when it was realised that I hadn't received the documents or pursued the matter. He asked if I had secured any free legal support on the matter, which I hadn't, before offering me further help. I assume that Mr Billington sought advice from a third party on the matter, which took some time before sending the appeal letter (See page 12 of bundle) to myself, to sign and submit promptly, which I did. I accept that the appeal letter was 7 days out of time, but claim that this was in part due to the E.A.T. Manchester not sending a copy of the extended reasons to the person whom had made the request. Whilst acknowledging that the 'reason for appeal' is not being considered here, only by granting a time extension for these circumstances can a fundamental error in law be corrected."

As I have already said, the first paragraph indicates that the Appellant would not be able to attend on 30 October.

[23]For present purposes I shall assume in favour of the Appellant that the Employment Tribunal in Manchester should have sent the Extended Reasons to the address on his IT1 and the address on the letter, by which the Appellant requested them. That is an assumption in favour of the Appellant and it is not meant to be an indication that I do not accept that the practice of this Employment Tribunal would be to amend its records to show that the address for communication with the Appellant was Mr Billington's address. It is also favourable to the Appellant because his initial letter to this Tribunal indicates or suggests that when he and Mr Billington discussed the matter they were aware that potentially there was a problem as to where the Extended Reasons should be sent. I would also add that, in any event given Mr Billington's involvement, it is understandable that the Employment Tribunal sent the Extended Reasons to that address and the Appellant's original letter as a minimum indicates that both the Appellant and Mr Billington were aware that this was a possibility.

[24]On the basis of the above assumption I proceed on the further basis that if the Appellant had provided dates and information which show(a) that he did not receive the Extended Reasons prior to the expiration of the 42-day time limit, and

(b) that the information he received from Mr Billington up to that time was that he had not received them, this would have provided a good or adequate reason for the delay and therefore, would have provided a ground for the exercise of discretion in favour of the Appellant by extending time for his appeal.

[25]However, despite being put on clear notice that a full and clear explanation was required of him and, in particular, an explanation as to when the Extended Reasons were received by him and Mr Billington, as I have indicated by my referral to his explanations the Appellant has failed to provide such detail. It follows, in my judgment, that he has failed to provide a full and honest explanation for his delay.

[26]I repeat that he has given no dates as to when Mr Billington received the Extended Reasons or when Mr Billington told him that this was the case. It is also apparent from his communication with Mrs Blair that the Appellant was taking active steps in connection with his appeal before the time limit expired.

[27]On the basis of the correspondence, I accept the submission made on behalf of the Respondent that it is likely that the Appellant had received the Extended Reasons, albeit that they were sent to Mr Billington before the time limit for appealing had expired. However, if I am wrong about that, it does not alter the fact that, in my judgment, he has failed to provide a full and proper explanation for the delay.

[28]The point raised by reference to the electoral roll is a further factor relied on by the Respondent. I accept that this information casts doubt on part of the explanation advanced by the Appellant. I have assumed in his favour that he did not have the information about the electoral roll before his letter of 24 October and therefore did not deal with it in that letter. That assumption in his favour cannot be made as of today's date when the likelihood is clearly that he has that information in his possession. As I have explained, he has not attended and indicated that he would not attend on 30 October (the day this appeal first came on for hearing). Also he has not attended today to explain why the emphasis he placed in some of his earlier correspondence on Mr Billington having an office address is one that is justified. That is a further factor which casts doubt on the fullness and accuracy of the explanations offered by the Appellant. I record that I would have reached the same decision if that factor had not been present in this case.

[29]Returning to paragraph 30 of Mummery J's judgment in the Abdelghafar case, as to the first two points, in my judgment a full and proper explanation has not been provided and the explanation that has does not provide a good or adequate excuse for the default.

[30]I therefore turn to consider the third issue as to whether, in this case, there are circumstances which would nonetheless justify the Tribunal taking the exceptional step of granting an extension of time. In the Abdelghafar case there were and they were circumstances relating to State Immunity. In this case, having regard to the issues between the parties and the respective positions of the parties, in my judgment there are no exceptional circumstances which would warrant an extension of time.

[31]Accordingly, this appeal is dismissed.