MR R BEVIS v MR H KHELIFI [2000] UKEAT 588_99_2202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 588_99_2202Case No Appeal No. PA/588/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R BEVISAPPELLANTMR H KHELIFIRESPONDENT
Before
Mr Justice LindsayDate 22 February 2000
[1]today and much more recently we have a communication from Mr Bevis, the applicant, indicating that for personal reasons he is unable to attend today as well. So that I have to deal with the matter in the absence of both sides. Mr Bevis wishes to pursue an appeal. He is out of time so far as concerns his notice of appeal by two days and also he needs to appeal against the order of the registrar striking out his notice of appeal.[2]The background is as follows: On 22 nd December 1998, Mr Khelifi lodged an IT1 claiming redundancy and claiming that the employer was Robin Bevis. That is the employer whose name is completed in box five of the IT1 lodged by Mr Khelifi and also in Box 11 where Mr Khelifi amplifies his complaint.[3]On the 16 th February 1999, there was a notice of hearing given for a hearing at the Tribunal to be on the 23 rd March 1999. Mr Bevis did not enter any appearance and on the 23 rd March there was accordingly a one day hearing in his absence. The decision was sent to the parties on the 7 th April. The decision, which was of the Chairman alone Mr P.A.Morris, was as follows:
"It is the decision of the Employment Tribunal that: - i. the respondent unlawfully deducted the sum of £750.00 from the wage of the applicant by non payment ii. the tribunal orders the respondent to pay to the applicant the said sum of £750.00, which is gross wages, as explained below."
[4]In paragraph 3 the tribunal said:
"The claim was for £750.00 which was unpaid wages arising out of the disappearance of the employer without paying the applicant the wages due for the month of July which he had worked. "
That decision, as I mentioned, was sent to the parties on the 7 th April and accordingly the 42 days allowed for notice of appeal expired on the 19 th May and it was not until the 21 st May that the EAT received Mr Bevis' notice of appeal. That notice of appeal at paragraph 6 says:
"Mr Khelifi was employed and worked for CW Label Systems Ltd, The Coach House, Broughton Hall, Skipton. He was not employed by me personally as I was also an employee at CW Label Systems Ltd" and also did not get paid"
. A letter written by Mr Bevis on the 16 th May to the EAT said:
" I returned yesterday from an extended period away from home and abroad and am now in receipt of your documentation to appeal against the decision of the tribunal in the case of Mr Khelifi against myself which I have duly completed and returned herewith. "
As explained Mr Khelifi was never employed by me personally as we were both employed by CW Label Systems Ltd. "I should also explain as a result of the company failing I also was not paid and as a result I am not in a position to pay anybody. "The situation that arose was unfortunate; however, I was personally in no way for any of the company's debts or commitments."[5]On the 24 th May the Registrar wrote to Mr Bevis to say that an extension of time must be applied for if the notice of appeal was to be accepted. On the 14 th July, the Registrar sent a reminder. On the 12 th August 1999, the notice of appeal was struck out by order because no application for an extension of time had been received. On the 3 rd October 1999, the appellant wrote. On the 6 th October the Registrar indicated that an appeal against the order of the 12 th August would be necessary and on the 25 th October, Mr Bevis asked to appeal the order of the 12 th August 1999. Were it not for the feature to which I am about to refer there would be no real ground for an allowing Mr Bevis' appeal to go further but there is some reason to believe that Mr Bevis was never the employer.[6]Mr Khelifi's claimed dates of employment were from the 18 th May 1998 to 31 st July 1998. His claimed place of work was at CW Label Systems Ltd, so Mr Khelifi himself seems to be urging some connection between the employment and that company name and also Mr Khelifi has sent a number of documents to the EAT and they contain interestingly indication at a number of passages. Thus there is a letter of 11 th January 2000 to the EAT from Mr Khelifi where it says in one paragraph:
"Please refer to document 4 dated 7th August 1998 in which Mr Bevis following the cessation of trading of his company promises to pay me outstanding wages plus a commission for the sale of a machine which I provided the information which he required."
Again there is mention of a company. Then he also sent a statement that he had made in relation to the litigation and it says:
"I was employed by Mr Robin Bevis to work for his company CW Label Systems commencing on the 18th May 1998, [which is of the course the very date which he claims was the start of his work]. I worked until 31st July 1998 [and that is] the work's end date which he claims]. I received my wages for the months May 2 weeks and June 4 weeks. In the final week of July there was a lot of activity in the office. There were documents arriving from the courts, phone calls from creditors and Mr Bevis was not available. He could not be contacted anywhere. He phoned the office on a couple of occasions but calls could never be returned."
[7]Then, also produced by Mr Khelifi, is a letter to him from Robin Bevis describing himself as Managing Director. The writing paper is that of CW Label Systems and at the bottom, it says CW Labels Systems Ltd Company Registration No 3408534. The letter to Mr Khelfi says: - Dear Sophian "Thank you for attending the interview at our offices earlier this week and I am pleased to confirm our offer of the position of Office Administrator for the company. … Proposed start date 18 th May 1998." So that looks like an offer to Mr Khelifi to be employed by the company from the 18 th May 1998, which is the very start date which he asserts. Pay slips are also been included and they seem to show that the company, CW Label Systems Ltd, was the employer and we also have a PAYE coding notice from the Inland Revenue addressed to Mr Khelifi. That says:
"This tax code is used to deduct tax payable on your income from CW Label Systems Ltd."
[8]And, consistent with the picture of a collapsing company, we have a facsimile to CW Staff from Mr Bevis on Sunday 2 nd August 1998 saying:
"Hopefully the cheques for salaries have arrived over the week end. However I will try and arrange to get further money through to the office on Monday or Tuesday. And, specifically relating to Mr Khelifi,:- "
Please tell Sophian that we will forward his money on to him during the next day or so and I will meet him when I get back."[9]The tribunal decision which was, as mentioned that the respondent Mr Bevis had unlawfully deducted £750.00 and so on, was in Mr Bevis' absence but it does not actually contain a finding as to who the employer had been. There is no direct finding that Mr Bevis had been the employer and there is no dealing with the papers which Mr Khelifi has sent here to the EAT (although I am bound to say that it is not clear whether they had been laid before the employment tribunal). If Mr Khelifi was relying on a contractual promise from Mr Bevis to pay to Mr Khelifi whatever the company owed Mr Khelifi then it is dubious as to whether the tribunal would have had jurisdiction to hear the case. It would then have not been a case between employer and employee, but a case between one contracting party who was not an employee or past employer of the other.[10]Mr Khelifi has elected not to attend today and as I have explained, Mr Bevis does not attend either but, in the circumstances, there are doubts as to who the employer was and, in consequence, doubts as to whether the Tribunal really had jurisdiction to deal with the matter as it purported to do. In other words, on the merits there are serious points to be gone into and whereas in many circumstances the merits are only a small feature in determining whether extended time should be given for a notice of appeal, where, as here, the delay in the lodging of the notice of appeal was short - only two days - and where, on the merits there would be seem to be a strong case that may even go to jurisdiction, it seems to me appropriate that I should set aside the order of the 12 th August 1999 and extend time for Mr Bevis' lodging of a notice of appeal to the 22 nd May of last year, thus validating the notice of appeal that was received on the 21 st May and accordingly I shall so order.