MR P METANIE v TELEGAN GAS MONITORING (INCORPORATING RESEARCH ENGINEERS) [2001] UKEAT 512_01_0512

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 512_01_0512Case No Appeal No. EAT/512/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P METANIEAPPELLANTTELEGAN GAS MONITORING (INCORPORATING RESEARCH ENGINEERS)RESPONDENT
Before
His Honour Judge D Pugsley Miss C Holroyd Mr D NormanDate 5 December 2001
[1]APPEARANCES For the Appellant MR P METANIE (IN PERSON) JUDGE D PUGSLEY : Mr Metanie seeks to appeal against a decision of the Employment Tribunal promulgated on 5 March 2001. We have not considered the question of bias since he has not, as directed by the Employment Appeal Tribunal, filed an affidavit substantiating and justifying that allegation. We have however considered the other grounds of his appeal.[2]Mr Gaskill who has travelled down from Cheshire under the ELAAS Scheme, Solicitor, has been here. Mr Gaskill has not taken part in the proceedings but he has been here to make a note for the Appellant at the Appellant's behest.[3]The grounds of appeal are many and various and excluding those allegations of bias and those of impropriety, such as the Employment Tribunal is not an independent body because there is no punishment for its members if they pervert the course of justice and other similar allegations. What the Tribunal is being asked to do is to find:(1) that this decision was fundamentally flawed because the time limit cannot apply to contracts of employment whose terms and conditions contained in a collective agreement are guaranteed for at least one year after the transfer (of the contract) from transferor to transferee, relevant European Directive 77/187 Article 3.2;(2) that the Tribunal asked itself the wrong questions considering the case under case law inexistent at the time of Employment Tribunals Extension of Jurisdiction Order;(3) that the Tribunal had no power to revoke the full hearing listed for 28 June 2000 and(4) that the Tribunal had no evidence in front of it to entitle it to conclude that the Respondents did or not received the Notice of Appearance and whether or not they received it is irrelevant as it was not first resoluted whether or not there was contract between the parties.[4]There was a review decision which deals with some of those issues and essentially what the Chairman said in the review is:
"The decision was taken in the absence of the Respondent not the Applicant who brings this application. The Respondent did not have to attend and chose not to do so, but was represented. The Applicant cannot complain about this. Any new evidence the Applicant refers to is not relevant to the reason for the Tribunal's decision to dismiss the Originating Application, which was based on estoppel and time limits."
[5]The Tribunal then said that the Applicant's interpretation of the law was misconceived because he was dealing with other matters than which the Tribunal had to consider and it set out its reasons for ordering the Appellant to pay the costs.[6]It may follow from what we have said already that this is not the first application Mr Metanie has made to an Employment Tribunal. On the last application he was given leave by an order of His Honour Judge Altman and thereafter following that there was a hearing before His Honour Judge Wilson on 21 November 2000. The two issues in that case upon which leave had been given was(a) that the Tribunal had not considered the question of consultation and(b) the question of whether the proper commission was either 10% or 20%.[7]We have no record of the Court of Appeal's dismissal of the appeal against that, but as we do have a record that the leave to petition the House of Lords had been refused by The Right Honourable Lord Justice Peter Gibson on 25 July 2001on the grounds that there was no right of appeal and, in any event, this is not a case where permission to appeal to the House of Lords should be granted.[8]The Tribunal Decision deals very comprehensively with the fact that this application was out of time. It sets out the history of the matter which is that the Applicant's cause of action arose on the termination of his employment on 27 June 1997. That his action for wrongful dismissal and breach of contract was presented on 21 January 2000, more than 2¼ years out of time. Further, that on 26 February 1998, the Tribunal reached a unanimous decision that the Applicant had not been unfairly dismissed and that the Respondent had not been in breach of the Applicant's contract of employment.[9]The Tribunal directed itself (forgive me for saying so) along the well worn route of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, CA and the even older case of Wall's Meat Co Ltd v Khan [1978] IRLR 400, CA and also considered the cases of Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 CA and Riley v Tesco Stores [1979] IRLR 49 CA. On the basis of those authorities the Tribunal concluded that the Applicant had not established that it was not reasonably practicable for the complaint to be presented within the three month period for the following reasons.[10]Firstly, the Tribunal found that he had managed to present the other application No. 2204484/97 within the three month period, which made a number of detailed complaints concerning the manner of the termination of his employment and included allegations of breach of contract. The Tribunal made the point that he therefore had full knowledge of the Tribunal's jurisdiction including its jurisdiction to deal with the breach of contract. They said that the allegation he now brings arises out of the termination of that employment and concerns an alleged unilateral variation of the terms and conditions, namely that his pay was cut in breach of the terms of a collective agreement and/or that he was not awarded a pay increase. He said on his own admission in evidence to the Tribunal that the facts forming the basis of this claim were known to him, but not apparently the right of legal actions specifically in respect of this alleged breach of contract and wrongful dismissal. The Tribunal said that they had difficulty in accepting that.[11]The Tribunal found that the Applicant had received solicitor's advice on at least one occasion having first approached the Citizens Advice Bureau. The Tribunal were no means satisfied that this was a new claim. They said, even if it was it arose from the termination of the Applicant's employment and facts known to him at that time and no new facts have come to light. They said there was no impediment to prevent his bringing the claim sooner.[12]The Applicant has complained before us that the Tribunal did not take into account that he was ill. The Tribunal said there was vague reference that he had an illness, although it had seen no evidence about this, but it was not suggested before him that such illness prevented his bringing the other matters before the Tribunal or making detailed research into his case. The Tribunal said there was no physical impediment to his bringing his claim and no misrepresentation by his employers. They also pointed out that the Applicant's claim was not just over time, it was a very long way out of time.[13]The Tribunal then went on to consider the issue of res judicata. After referring to various authorities including the old case of Henderson v Henderson [1843] 3 HARE 100 , the Tribunal concluded that the Applicant could and should reasonably have brought forward this further matter of complaint when he initiated proceedings in September 1997. The Tribunal said that he did not do so and is therefore estopped from attempting to do so now. The Tribunal therefore dismissed the application as being an abuse of process and/or frivolous or vexatious within the meaning of rule 13(2)(d) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 .[14]Both parties made application for costs. On that day of the hearing the Respondents had been given leave to enter a late Notice of Appearance. The Tribunal found that the Respondents did not receive the Notice from the Tribunal when it was sent originally, but when it was received they pursued the defence diligently. The Applicant's case is that he had to prepare the case for a full Tribunal hearing which in the end did not take place and he lost two days' work in such preparation and therefore two days' pay.[15]The Tribunal decided not to award the Applicant costs because they did not think the employer had acted unreasonably. They thought, however, that he should pay £150 costs of the application because they said that they found he had conducted the proceedings unreasonably, vexatiously and/or frivolously.[16]We have looked through the Decision, we have looked through the grounds of appeal (which we do not claim to have set out in an extensive form) but we find nothing there that in our view enables us to say that there is any misdirection of law, nor is there any area where we consider the Tribunal applied their discretion in an arbitrary, capricious or unreasonable way.[17]We have some sympathy for the Appellant as far as costs are concerned but, at the end of the day, his answer that it is of no consequence to the employer because they are a big company and he is a sole individual is not acceptable. The bringing of unnecessary and unwanted litigation where there is no real triable issue, adds to the burden paid by the company and indirectly paid by consumers of the services of that company. This was only a token payment having regard to the real costs. We therefore come to the view that we dismiss this appeal.