MS K M KYI v THE POST OFFICE [2001] UKEAT 1093_00_2305

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1093_00_2305

Case No Appeal No. EAT/1093/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS K M KYIAPPELLANT

THE POST OFFICERESPONDENT

Before

Sir Christopher Bellamy

Date 23 May 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT SIR CHRISTOPHER BELLAMY QC This is an Ex Parte Preliminary Hearing to determine whether the Notice of Appeal lodged by the Appellant, Ms Kyi, against the decision of the Employment Tribunal sitting at Stratford, the extended reasons for which were sent to the parties on 18 July 2000, discloses any reasonably arguable point of law. By that decision the Employment Tribunal dismissed as frivolous and vexatious the complaints made by the Applicant under case number 3202522/99 and further decided that the Applicant should have a final opportunity within 42 days of the date of the promulgation of that decision to show cause why the complaints raised in case number 3200756/00 should not be struck out also as frivolous and vexatious.

[2]The reasons given by the Tribunal were essentially that the complaint struck out was the last in a serious of some 7 previous complaints that had been determined against the Applicant and were therefore res judicata. The Tribunal said this, in so far as it is relevant, in the extended reasons:

"1 Ms Kyi has not attended this hearing and nor was she represented. That is not entirely unforeseen given that it is understood that Ms Kyi is presently resident in Burma, she has sought postponements on the grounds of ill health and she failed to appear at the Employment Appeal Tribunal on 12 January 2000 at the hearing of her appeal against an earlier decision of an Employment Tribunal. 2 A hearing took place at Stratford on 24 November 1999 in order to consider an application by the Respondent that the Originating Application should be struck out as frivolous and vexatious. Ms Kyi did not attend that hearing although her request for a postponement had been refused. No other explanation for the fact that she was neither present nor represented had been put forward. Notwithstanding that, the view was then taken it would not be right to strike out the application without affording to Ms Kyi an opportunity to show cause why such a step should not be taken. That letter gave opportunity dated 30 November 1999 and allowed Ms Kyi 42 days in which to respond. Responses have been received from a lawyer instructed by Ms Kyi in Burma but those have failed to address the points of concern. 3 As recorded in the letter of 30 November, application 3202522/99 was the 7 th by this applicant against the same Respondent. All earlier applications were either struck out or dismissed on withdrawal. Although appeals have been lodged by Ms Kyi, those earlier dismissals still stand. Ms Kyi's latest appeal was dismissed by the EAT on 12 January 2000 when she failed to attend. 4 Since that letter was sent, by an Originating Application presented on 24 January 2000 and registered under Case No 3200756/00, Ms Kyi has made yet further complaints. It is a question for the Tribunal at this hearing whether or not, as asserted by the Respondent, the matters raised both by the 7 th and 8 th Originating Application cannot lie within the jurisdiction of this Tribunal since they relate to issues already determined and are, therefore, res judicata. That is a principle of law to the effect that an issue, once finally determined by a court or Tribunal, cannot be brought again. 5 It will not assist an understanding of our decision to repeat paragraph 7(1)-(4) of the letter to the parties dated 30 November 1999. That paragraph identifies the basis, in summary form, of the Respondent's assertion in relation to jurisdiction and the application of the res judicata principle. It was required that the applicant show cause why her complaints should not be struck out and that she has failed to do despite being afforded a further opportunity to do so by attending this hearing. This Tribunal must seek to balance the undoubted interest of the Applicant in having her complaints properly determined with that of the Respondent which says that it has been called upon, time after time, to respond to complaints that have no arguable merit and which have already been determined. The Tribunal considers that the Applicant had had every reasonable opportunity to address the points raised but has failed to do so. No arguable basis is shown to exist upon which this Tribunal could have jurisdiction to address the matters raised by the 7 th application and accordingly that is ordered to be struck out."

The Tribunal then goes on to consider what is to happen in relation to the 8 th Application, case number 3200756/00 and in relation to that application the Tribunal decided to give Ms Kyi one last opportunity within 42 days to show cause why the complaints raised in that case should not also be struck out as frivolous and vexatious in the sense that, because of the res judicata principle, they have no arguable prospect of success. We add in parenthesis that it appears that by a subsequent decision dated 7 September 2000, that case, 3200756/00, was in fact struck out, the Respondent having submitted a further letter to the Tribunal from lawyers acting on her behalf which failed, according to this later decision, to address the concerns identified by the Tribunal in it's decision of 18 July. Accordingly the later complaint was also struck out on the basis that it was not arguable and it was frivolous and vexatious to prosecute it. This appeal however, is against the decision of the Employment Tribunal of 18 July and was presented by a Notice of Appeal dated 21 August 2000.

[3]What happened thereafter was that the appeal was listed for hearing by this Tribunal for the 19 February 2001. Shortly before that date, by a fax of 7 February, the Appellant wrote in to the Employment Appeal Tribunal asking for a postponement on medical grounds. She provided a medical certificate which is dated 25 January and signed by a doctor in Burma which states:

"This is to certify that the Applicant is suffering from depression and anxiety. She is taking treatment and she is recommended to have one month's leave with effect from 27 th January 2001."

The Registrar, by letter of 9 February 2001, wrote to the Applicant to say that the hearing set for 19 February 2001 had been vacated. The Applicant was then informed:

"The matter will be held out of the list for 3 months and not for the 6 months you have requested. The reason for this is doctor's certified leave for one month. Any further delay to the hearing of this matter will need to be supported by a medical certificate to cover the whole period. In the absence of medical certification any decision on future adjournment requests may not be so generous and may result in the matter being dealt with on written submissions in your absence."

That letter from the Registrar of 9 February 2001 was then followed by a further letter to the Applicant from the Registrar on 27 February 2001. That further letter is in these terms:

"As a result the hearing of 19 February 2001 was vacated until 23 May 2001. The matter was only held out of the list for 3 months not for the 6 months you have requested. The reason for this is the doctor has only certified leave for one month. Any further delay in the hearing of this matter will need to be supported by a medical certificate to cover the whole period. In the absence of medical certification any decision on future adjournment requests may not be so generous and may result in the matter being dealt with on written submissions in your absence. I must stress that any request for further adjournment whether it is sought on medical grounds need to be convincingly supported by a medical certificate or other clear medical evidence not only covering the whole period of 3 months from 19 February 2001 but also making a clear case for your inability to attend/conduct the Preliminary Hearing for some specified future period, and/or an inability to procure representation at that hearing."

[4]This case was, as those letters indicate, re-listed for today, 23 May 2001. It is apparent from the letters I have just set out, that the Appellant has known since last February that the case was to be listed for today. This morning the Registry received a fax from the Appellant who continues to be resident in Yangon in Burma which is addressed to the Registrar and reads as follows (it is in fact received today as appears from the note of transmission at the top of the document but is in fact dated 18 May 2001):

"Further to my fax dated 7 th , 17 th & letter dated 13 th February 2001 requesting a 6 month postponement, which was granted 3 month , I am writing to request you to kindly grant me 6 month extension of postponement on genuine ground. (medical certificate provided). And referring to your letter of 20 November 2000 regarding hearing (against EAT procedure) during my sick period & travelling abroad for medical reason. REASONS Since 1999 May . I have been continuously on sick leave, suffering serious consequence (medical certificate provided) of 4 year long term repeated serious unlawful racial discrimination/disability discrimination by my employer Royal Mail & abusive shift manager Dave Wellard & followers since 1995 August, as a direct result of my Industrial Tribunal Claim No. 1 complaint about intentional, dangerous perpetrator, same seniority colleague coder Ms Greenaway, who threatened to kill me in the course of employment for no reason. No action was taken against perpetrator but more victimisation towards innocent, who brought the case to Industrial Tribunal to get justice for long term genuine & damages, & sufferings under Race Relation Act 1976. In 1999 June continuous work related mental stress caused by employer Post Office became serious physical head pain & inflammation (evidence provided) since case (8). I was suggested by my GP Dr Baines to stay away from Post Office, as part of the treatment. I am still under the care of the doctor and treatment for the severe stress related illness as serious consequence, resulting forced to terminate my employment as a 10 year service qualified skilled key board operator. I am unfit to work, unfit to attend hearing. Please therefore I would respectfully ask Registrar EAT to kindly grant 6 month extension of postponement on genuine medical ground."

That letter is copied to the President of the EAT, the Prime Minister, the Minister for Employment, Minister for Disability Living Allowance, the Health Minister, the Chief Executive of ACAS and one other somewhat difficult to decipher on the document before the Tribunal. It is accompanied by a faxed copy of a medical certificate from the Setra Poly Clinic, which is apparently in Burma, which is also a notarised document, signed by a doctor which reads:

"This is to certify that Miss K M Kyi is diagnosed as having stress related disorder for which she is still under treatment. It is recommended one month medical leave for her with effect from 27 th April 2001."

It is noted that that medical certificate is dated 24 April, that is to say almost a month ago, but it is not until the date of the hearing today that the medical certificate was drawn to the Tribunal's attention. Although it speaks of one month medical leave from 27 April, it does not cover the 6 month postponement that is asked for by the Applicant in her letter and nor does it comply with the indications given in the Registrar's last letter to the Applicant of 27 February 2001 that any further adjournment if sought on medical grounds would need to cover the whole period for 3 months from 19 February 2001. As far as the question of whether the medical certificate makes "a clear case for an inability to attend/conduct the Preliminary Hearing" it is not at all clear why, even if the Appellant is, as certified, suffering from a stress related disorder, that she is unable to organise appropriate representation to conduct the hearing on her behalf today.

[5]While we are, of course, conscious of the medical condition from which this Applicant appears to be suffering, in view of the history of the matter which I have just related, namely, the long series of complaints that this Applicant has brought against the Respondent Post Office, over a considerable period of time, the circumstances set out in the Tribunal's decision, finding that her conduct has been frivolous and vexatious, and the earlier correspondence with the Registrar of this Tribunal, we decided that before ruling on the question of whether to adjourn this case to yet another hearing, we would ourselves examine whether the Notice of Appeal submitted by the Applicant could be said to give rise to an arguable point of law in order to satisfy ourselves, that it was necessary for the Applicant, or a representative on her behalf, to attend this hearing before the matter could be fairly disposed of. We have power to dispose of the matter in the absence of the Applicant and we have therefore considered very carefully the Notice of Appeal dated 21 August 2000. That notice, which is apparently prepared by a lawyer in Burma, begins as follows:

"I am writing on behalf of Ms Kyi on her request and at full consent. Ms Kyi has instructed as follows: Ms Kyi explained that she has been travelling abroad on medical reason. And on sick leave continuously since Aug 1999, until now (certificate provided). Ms Kyi wish to appeal against Employment Tribunal decision dated 18 July 2000. Employment Tribunal decision wrong in law & void because:- A. Employment Tribunal has no power to strike out her claims, for which respondent, showed to evidence & prove of frivolous / vexatious / scandalous. Respondent who seeks to strike out has the duty to evident frivolous / vexatious /scandalous. The law did not require innocent, Applicant to reason & prove as IT created & demanded. Employment Tribunal failed to demand Respondent who seek strike out who has the duty to evident frivolous / vexatious / scandalous . B. There is only one incident dated 29 June 99 in IT1 dt 6 July 1999 under Tribunal case No 3202522/99. Nothing else. C. All Tribunal decisions wrong in law & based on its own creations. Even wrongly created strike out Case No 3202522/99 repeatedly on 24 Nov 199 and 3 July 2000. Tribunal failed to provide IT3 for IT1 dated 29 July 99 Ms Kyi's claim No.(8) for first time physical head pain & inflammation occurred on 3 June 99, despite repeated fax requests. Tribunal failed to provide Respondent submission bundle for 24 Nov 99 hearing for IT1 dt 6 July 99 to Ms Kyi. Tribunal failed to provide Respondent submission bundle for 3 July 2000 hearing for IT1 dt 24 jan 200 to Ms Kyi. Tribunal further wrong in law because – 1. decision was one sided, inaccurate, untrue & failed to take into account of all true contents of IT1s and 2. decision made was during her sick period (17 Aug 1999 to 6 Aug 2000)(medical certificate provided)"

There is then a series of grounds which in essence repeat the Applicant's original complaints against the Post Office which have been struck out.

[6]Reading that Notice of Appeal and the decision of the Tribunal of 18 July 2000 we have to say that the Notice of Appeal does not, in our view, identify any arguable ground of law whatever in this appeal. We cannot detect or divine any matter set out in the Notice of Appeal which could be said to put in question in law the decision of the Employment Tribunal of 18 July to strike out case number 3202522/99 as frivolous and vexatious. As far as the decision to give the Applicant a final opportunity to show cause why the complaint in case number 3200756/00 should not be struck out, that too in our view, is a decision by the Tribunal which is not open to criticism.

[7]In all those circumstances, as I have related them, we do not consider that any injustice would be caused to the Applicant in this particular case by refusing the adjournment that she requests today and proceeding to determine the appeal in her absence as we are empowered to do on the basis of the written submissions we have before us. This Applicant has had ample opportunity to instruct lawyers to act on her behalf or secure other appropriate representation before the Tribunal even if for medical reasons she is unable to be present herself. Having fully considered the matter and for the reasons I have given we are unable to detect any error of law made by the Tribunal in the contested decision and therefore on those grounds we are obliged to dismiss this appeal. The appeal will be dismissed.