ADC TELECOMMUNICATIONS UK LTD v MR J R CARR [2003] UKEAT 0141_03_0910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0141_03_0910Case No Appeal No.PA/0141/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ADC TELECOMMUNICATIONS UK LTDAPPELLANTMR J R CARRRESPONDENT
Before
His Honour Judge Peter ClarkDate 9 October 2003
[1]APPEARANCES For the Appellant MR ROBIN WHITE (Of Counsel) Instructed by: Messrs Addleshaw Goddard Solicitors 25 Cannon Street London EC4M 5TB JUDGE PETER CLARK The Applicant, John Carr commenced these proceedings in the Newcastle-upon-Tyne Employment Tribunal by an Originating Application presented on 11 June 2002, complaining of unfair dismissal by his employer; the Respondent ADC Telecommunications UK Ltd (ADC). To that complaint ADC entered a Notice of Appearance dated 3 July 2002 resisting the claim on the basis that the reason for dismissal was redundancy, a potentially fair reason and that dismissal for that reason was fair. The company is based in Brussels.[2]The matter was listed before an Employment Tribunal chaired by Mr J R Barton on 30 August 2002. On that occasion the Applicant appeared in person but ADC did not appear and were not represented. In the absence of any explanation for the Respondent's non appearance the Employment Tribunal proceeded to hear the case, uphold the Applicant's complaint of unfair dismissal and awarded him compensation totalling £11,915.46. That decision was promulgated with summary reasons on 5 September 2002. Following receipt of that decision the Respondent's solicitors applied for a review by letter dated 19 September. A review hearing took place before the same Employment Tribunal on 29 November. The Respondent called their Human Resources manager, Mrs Eura Burzynska to give evidence on their behalf and the Employment Tribunal heard evidence from the Applicant.[3]The Employment Tribunal accepted as fact that the original notice of hearing was posted to the Respondent's address in Belgium on 1 August 2002. Save that the zip code appeared after, not before the country in the address, the same address given by the Respondent in their notice of appearance was used. They accepted Mrs Burzynska's evidence that the position of the zip code in the address would not be expected to prevent delivery.[4]The review application proceeded on 2 alternative grounds; that the Respondent did not receive notice of the proceedings leading to the original decision (Employment Tribunals Rules of Procedure - Rule 13(1)(b)) and that the decision was made in their absence. Rule 13(1)(c).[5]Mrs Burzynska gave evidence surrounding the alleged non-receipt of the relevant notice of hearing. The Employment Tribunal found that she, as Human Resources manager, received the Originating Application and prepared and returned the Respondent's Notice of Appearance. She spoke to ACAS and it was her intention to defend the claim. She heard nothing further until she received the original decision. An internal investigation failed to throw up the notice of hearing.[6]As to the Respondent's system for dealing with incoming post the Employment Tribunal made the following findings of fact at paragraph 3(j) of their Extended Reasons for their review decision, promulgated on 10 December 2002:
"(j) Approximately thirty employees are based at the respondent's premises in Belgium to which the notice was addressed. Incoming post is left on the receptionist desk to be sorted. The applicant gave evidence, which we also accept, that the receptionist is not always present at the desk. When sorted the post is placed in pigeon holes for individual employees. Ms Burzynska caused an enquiry to be made of all employees to see if they had received the missing notice without finding the notice."
[7]The Employment Tribunal directed themselves as to the relevant rules of procedure. A notice of hearing may be sent to the parties by post. Notices sent by post are governed by the deeming provision in Section 7 of the Interpretation Act 1978; that provides that service is deemed to be effected by properly addressing, prepaying and posting a letter containing the document, and unless the contrary is proved, to have been effected in the ordinary course of post.[8]The Employment Tribunal also had regard to the 3 relevant EAT authorities; the cases of Migwain [1979] ICR 597 and Limburn [1987] ICR 696, which I considered in Zietsman v Stubbington [2002] ICR 249 . It is for the party claiming not to have received the document to rebut the presumption of effective service.[9]In the instant case the Newcastle Employment Tribunal was not satisfied that ADC had discharged that burden. They found, and this finding is not challenged, that the letter containing the original Notice of Hearing was sufficiently addressed to be expected to arrive at the Respondent's offices in time. They found that it was more likely than not that it was appropriately delivered to the Respondent's premises in Belgium, particularly in the absence of any evidence of enquiries made by the Respondent of the postal authorities, nor other evidence to suggest what happened to the notice if it had not been properly delivered. In arriving at that conclusion the Employment Tribunal had before them the steps which Mrs Burzynska had taken to locate the document internally. Accordingly the review application was dismissed.[10]Against that review decision ADC appealed by a Notice dated 21 January 2003 settled by Counsel, Mr Robin White, who did not appear below.[11]Having considered that Notice of Appeal and the review decision the Registrar concluded, in accordance with Rule 3(7) of the Employment Appeal Tribunal Rules, that no point of law was raised in the appeal such as to found the Employment Appeal Tribunal's jurisdiction under Section 21 of the Employment Tribunals Act 1996. She therefore directed that no further action be taken on it and so informed ADC by letter dated 24 February 2003.[12]Dissatisfied with that direction ADC have caused the matter to be referred to me for a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules.[13]Mr White submits that the grounds of appeal raise 3 questions of law such as to give the Employment Appeal Tribunal jurisdiction. They are:(1) that the Employment Tribunal treated the 3 earlier Employment Appeal Tribunal authorities to which I have referred as authorities of fact, not law(2) that the Employment Tribunal gave no proper grounds for concluding that ADC had failed to rebut the presumption of delivery(3) that their conclusion was perverse; it was not a permissible option on the facts.[14]In my judgment those various grounds cannot disguise the true position, which is that this is an appeal on fact dressed up in the form of questions of law.[15]I can see no warrant for the suggestion that the Employment Tribunal treated the earlier authorities as anything more than setting out the legal principles properly to be applied. The evidence, particularly the absence of any evidence as to enquiries of the postal service, was insufficient in the judgment of the fact finding Employment Tribunal, to rebut the presumption of proper delivery. Quite simply, the system of which Mrs Burzynska and the Applicant spoke did not persuade the Employment Tribunal that it was more likely than not that the package failed to reach ADC's premises. In these circumstances the Employment Tribunal's conclusion in my judgment was a permissible option.[16]Accordingly I shall dismiss this application and affirm the Registrar's direction.