MR R OLEKSAK v ATLANCO LTD [2006] UKEAT 0445_06_0712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0445_06_0712Case No Appeal No. UKEAT/0445/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R OLEKSAKAPPELLANTATLANCO LTDRESPONDENT
Before
His Honour Judge ReidDate 7 December 2006
[1]APPEARANCES For the Appellant Mr Radoslaw Oleksak (The Appellant in Person) For the Respondent Ms Jane McCafferty (of Counsel) Instructed by: Messrs Julian Taylor Solicitors Hazel Cottage Studio Bicester OX25 3QX Summary Practice and Procedure – Striking out/ dismissal The Appellant failed to provide disclosure in accordance with an order of the Employment Tribunal. The order was in the form of a letter which failed to contain a penal notice pursuant to rule 10(6) of the Employment Tribunal Rules though it referred the possibility of the claim being dismissed for un-compliance. The Tribunal dismissed the entirety of his claims notwithstanding the failure to disclose related only to one of the claims. HIS HONOUR JUDGE REID QC This is an appeal by the Claimant, Mr Oleksak, against the decision of an Employment Tribunal held at Cardiff on 8 September and 15 November 2005, which was sent to the parties on 23 December 2005. A certificate of correction was issued on 25 August 2006. The appeal comes to the Tribunal following an order made on 2 August 2006 by HHJ McMullen QC on a hearing under rule 3(10) of the EAT Rules. By its decision the Tribunal dismissed the Claimant's claim in its entirety on the grounds that he had failed to disclose documents as directed by the Tribunal at a hearing on 8 September 2005.[2]The Tribunal expressed its view in these terms:
"The Tribunal concluded that the Claimant had not given full disclosure of all the documentation that it had ordered the Claimant to give on the 8th September 2005 and considered that the Claimant had not been frank in his evidence to the Tribunal as to the whereabouts of the missing documentation."
It went on:
"Accordingly, the Tribunal considered that in the interests of justice the Claimant's complaints should be dismissed in their entirety as the Tribunal did not feel that in all the circumstances it could place reliance on the evidence of the Claimant."
[3]The Claimant, who is Polish, represented himself on this occasion, though he had previously been represented under the ELAAS scheme. His Notice of Appeal had been re-amended by counsel pursuant to the order of the judge on the rule 3(10) hearing. Mr Oleksak addressed lengthy and wide-ranging submissions to us referring to a number of authorities including the Book of Genesis. He was assisted by an interpreter to whom he referred as necessary. We are very grateful to her for her assistance. It was extremely difficult to relate his submissions to the re-amended Notice of Appeal.[4]The Tribunal identified the Claimant's claims thus:
"The Claimant (who gave his evidence through an interpreter) complained of five matters: - (i) discrimination on the grounds of nationality; (ii) he said that he was dismissed because he made protected disclosures [to the Polish Embassy] about criminal activity on the part of the Respondent; (iii) he said that he was dismissed for trade union activity; (iv) he said that he was dismissed for health and safety reasons; (v) he said that he was dismissed because of a unilateral change in his contract."
This was not entirely accurate. Mr Oleksak's ET1 identified also a claim for breach of contract in failing to pay him one week's pay in lieu of notice.[5]The background to the case was that Mr Oleksak and a substantial number of other Poles were employed by the Respondent which describes itself as providing flexible human resource solutions on an international basis. The workers in this instance were recruited by the Respondent and then supplied to St Merryn Meat at Merthyr Tydfil as meat packers. Mr Oleksak's employment began on 14 October 2004. Because of his command of English Mr Oleksak was appointed as supervisor of his group. Mr Oleksak took on himself the role of unofficial shop steward and came into conflict with both the Respondent and its client, St Merryn. He was dismissed on 4 March 2005. On 1 June 2005 he applied to the Employment Tribunal. His case was that he was dismissed because he raised concerns about the retention of the workers passports by the Respondent (and in doing so made protected disclosures to the Polish Embassy) and about health and safety issues. The Respondent's case was that he was summarily dismissed for gross misconduct. It also cross-claimed for £400 allegedly due to it from Mr Oleksak in respect of administration and transport costs in getting him to the job at St Merryn.[6]By letter dated 8 August 2005 giving directions the Tribunal required the parties to disclose to the other on or before 19 August "all documents that they intend to rely on at the hearing". On 24 August 2005 the Respondent's solicitor wrote to Mr Oleksak on the subject of disclosure, asking (among other things) for a copy of an e-mail dated 4 January 2005 sent by Mr Oleksak to the Polish Embassy. This had not been disclosed but an e-mail of 10 January 2005 referring to it had been. Mr Oleksak did not produce the e-mail and on 1 September the Tribunal ordered him to do so. That order had a penal notice endorsed on it in accordance with rule 10(6) of the Employment Tribunal Rules 2004 . On 7 September the Respondent's solicitor gave notice of his intention to apply to have the application dismissed or Mr Oleksak fined for refusal to give disclosure of the e-mail of 4 January. The application letter was misdated 31 August but this was clearly a mere typographical error since it was sent under cover of a correctly dated fax sheet and referred to the order dated 1 September and the "hearing tomorrow". On 7 September, the day of the mis-dated letter, Mr Oleksak produced a partial copy of the e-mail, evidently printed from a computer screen, cutting off one edge of the document and the end of it.[7]On 8 September the case came on for hearing. The Respondent then submitted that the Claimant had not given full disclosure of his communications with the Polish Embassy and asked the Tribunal to dismiss his complaints in their entirety. The Tribunal refused to do so but adjourned the hearing and the Chairman orally issued an order. The written record of the order was sent to the parties the following day in letter form. It read:
"On Thursday 8 September 2005 the Tribunal, establishing that the Claimant would probably be able to return for an adjourned hearing, directed that the Claimant do give full and complete disclosure of all correspondence to and from the Polish Embassy in connection with his claim within 28 days. In the event of the Claimant being for no good reason unable to do that then consideration would be given to the claim being dismissed and there may be a question as to costs. Within 28 days the Claimant should provide to the Tribunal and to the Respondent full details of his health and safety complaints. Also within 28 days the Claimant should explain why he did not file a complaint of breach of health and safety procedures within three months of the date of his dismissal."
The Tribunal directed that the Respondent should have a further 14 days to respond to the health and safety complaints if so advised."[8]The letter did not have a penal notice endorsed on it. A penal notice addressed to a claimant will be in a form such as:
"Failure to comply with this order may result in a fine of up to £1000 being imposed upon the Claimant under section 7(4) of the Employment Tribunal Act 1996 and/or the claim being dismissed before or at the hearing."
A further letter from the Tribunal dated 16 September contained the following passage:
"Directions were given in letter form – not in an order."
This is inconsistent with the note of what was said by the Chairman at the conclusion of the hearing.[9]So far as the direction in relation to the heath and safety complaint is concerned, the Claimant did produce a document within the time limited by the letter of 12 September 2005 and no point has been taken as to the adequacy of the letter.[10]On 15 November 2005 the Tribunal reconvened and the Respondent renewed its application that the claims should be dismissed in their entirety. On behalf of the Respondent it was submitted that the Claimant had still not made full and complete disclosure of all communications with the Polish Embassy. Not surprisingly it was submitted that the Tribunal could not determine the question of whether there had been protected disclosures without seeing what disclosures had been made. The e-mail of 4 January, which related to the Polish Embassy whistle-blowing claim, commenced "Continuing my description…". [The most appropriate translation of the phrase in Polish was a matter of debate but it was common ground that this translation captured the essentials of the original]. This suggested previous correspondence and accordingly the Respondent's representative repeated his submission that the application should be dismissed. After seeking clarification from the Tribunal appointed interpreter that the expression used by the Claimant did indeed signify that there had been previous communication that had not been disclosed, the Tribunal tried to establish from Mr Oleksak why this previous communication had not been produced. The Claimant gave some explanation, but the Tribunal concluded that the Claimant had not given full disclosure of all the documentation that it had "ordered" (to use the word in the Tribunal's reasons) him to give on 8 September 2005 and considered that he had not been frank in his evidence to the Tribunal as to the whereabouts of the missing documentation.[11]The Tribunal then dismissed Mr Oleksak's application. The reason given in its decision were those set out in paragraph 2 above. The Tribunal made no order at all in relation to the cross-claim which appears to remain in limbo.[12]The grounds of appeal as settled by counsel asserted a considerable number of errors of law by the Tribunal. The pertinent ones were:(a) The "order" of 9 September was either not an order at all or (if it was) was defective in that (i) it did not have a penal notice endorsed as required by rule 10(6) and (ii) no, or no proper, notice of the application was given to Mr Oleksak.(b) The Tribunal was wrong in law to dismiss the claim (if it intended to do so) or to strike it out (if that was what was intended) in that (i) if it purported to dismiss the claim rather than striking it out, it did so without having heard the evidence and (ii) if the decision was in fact a strike out, it did not identify permissible grounds or a strike out under rule 18(7), it did not identify the grounds for striking out, and – if the hearing was a pre-hearing review rather than a hearing- should have been conduct by the chairman alone, and it failed to give the Claimant proper notice of what would be considered at the hearing.(c) The remedy of striking out the whole claim was disproportionate, perverse and an unreasonable exercise of discretion, given the strength of the case disclosed on the papers and that the failure to disclose related only to one of the various claims.[13]The remaining grounds of appeal were on examination of the facts not capable of support. They asserted amongst other things(1) a deliberate backdating of the mis-dated letter of 31 August 2005,(2) that the Tribunal's whole decision was coloured by the apparent misconception that apart from the whistle-blowing claim all the other claims were bound to fail because Mr Oleksak had been dismissed before he had been employed for12 months,(3) that the Tribunal failed to take account of the fact that there was a dispute about the translation of the e-mail of 4 January, and(4) Mr Oleksak did not receive a fair hearing in that the Tribunal did not have Mr Oleksak's evidence on anything except the disclosure issue, failed to make allowance for the fact he was conducting proceedings in a foreign language, did not listen to his explanations and did not have his bundle of documents before it.[14]As to these grounds:(1) It was obvious that the mis-dating was a mere error.(2) The Tribunal was not under the alleged misapprehension as was made apparent by a certificate of correction of the decision which counsel did not have the opportunity to see (and even without the certificate of correction we would not have been able to find such a misapprehension).(3) There was no disagreement as to the substance of the relevant part of the e-mail (and incidentally the e-mail had a "2" in its heading which pre-supposed there was a "1").(4) It was clear that the Tribunal listened at some length to the explanations given by Mr Oleksak on the only issue they were considering, namely his failure to give disclosure, made full allowance for his linguistic disadvantage and had caused an interpreter to be provided for him, and did not need his bundle to consider his alleged failure to make disclosure.[15]As to the first of the substantive grounds of appeal, assuming the letter of 9 September was intended to reflect an order made by the Tribunal as a case management order, the Tribunal had power to make such an order under rule 27(7) which empowers a Tribunal at a hearing to make case management orders which would normally be made by a Chairman alone. However, it was an order of the type specified in rule 10(2)(d) (ie an order for disclosure of documents) but did not comply with the requirement of rule 10(6) in that it did not refer to section 7(4) of the 1996 Act identifying the penalties for failure to comply with the order.[16]Insofar as it was supposed to be an order based on an application made by the Respondent, Mr Oleksak had not been given 10 days notice of the application in accordance with rule 11(2) and there was no indication that the Tribunal considered and determined that time should be abridged.[17]Whilst the Tribunal decision at paragraph 9 refers to the instruction as an order, "The Tribunal ordered that the Claimant should give full and complete disclosure of all correspondence to and from the Polish Embassy…", the letter of 9 September says "the Tribunal… directed…" and the Tribunal's letter of 16 September says "Directions were given in letter form -not in an order." In our judgment the fact that the order made orally on 8 September was then recorded in letter form when sent to the parties and was described as "directions" does not mean that there was not an order made, and that it should have had the penal notice endorsed. Similarly the fact that the order was made on inadequate notice to Mr Oleksek and that the Tribunal did not formally deal with the short service point does not mean that the tribunal did not make an order.[18]The order made was, in our judgment not a nullity. The effect of the omission of the penal notice might very well provide a complete defence to any attempt to enforce the penal consequences of failure to comply, but it does not nullify the order altogether. The direction made it clear what was required of Mr Olaksek and what might happen to his claim if he did not comply with the order. No attempt has been made to appeal that order or have it set aside.[19]As to the second ground, it is clear that the decision on 15 November was taken at the adjourned hearing of the claim and not at a pre-trail review. The case had been adjourned part-heard on 8 September and the hearing on 15 November was the continuation of the adjourned hearing. When the question of Mr Olaksek's continued failure to give disclosure was raised the Tribunal dealt with it, allowing Mr Olaksek "an opportunity to give reasons orally to … the tribunal as to why the order should not be made" as required by rule 19(1). He sought to explain his apparent failure to give the requisite disclosure, but the notes of the hearing show that he gave a variety of explanations (which did not appear to accord with each other). The Tribunal was fully entitled to hold that Mr Olaksek had not been frank with it.[20]Having so held, the Tribunal then had the power to "make a judgment or order" under rule 18(7) "(c) striking out [the] claim … (or part of [it]) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant…has been scandalous, unreasonable or vexatious….(e) striking out [the] claim … (or part of [it]) for non-compliance with an order…." The result of striking out the claim would be that it came to an end. The word "dismiss" is not a word found in this context in the 2004 Rules and given that the effect of striking the claim out would be to bring it to an end it does not seem to us that there is any point of substance to made from the Tribunal's use of the word "dismissed" rather than the words "struck out".[21]Before doing so the Tribunal should have reminded itself of the draconian nature of the striking out remedy and (at that time) the guidance given in Bloch v Chipman [2004] IRLR 140 . Since the decision there has been the Court of Appeal decision in Blockbuster Entertainment v James [2006] IRLR 631. It is unfortunate that the Tribunal does not make any express reference to having considered the principles involved, but it is apparent that the Tribunal was motivated so far as the whistle-blowing claim was concerned by the proper considerations.[22]As Sedley LJ pointed out in Blockbuster at para 5 this draconian power is "not to be readily exercised" and that where a party has been conducting himself unreasonably the "two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trail impossible." It is sufficient if either one of these two conditions is satisfied: see Premium Care Homes v Osborne UKEAT/0077/06. If one or other of the limbs is satisfied, then the Tribunal must consider whether the striking out is proportionate. The Tribunal then has to consider "whether there is a less drastic means to the end for which the strike out power exists": see Blockbuster at para 21.[23]In this case it is clear that the Tribunal considered that there was no alternative to a strike out because it "did not feel that in all the circumstances it could place reliance on the evidence of the Claimant." In so finding it was making clear that a fair trial (at least on the issue of whistle-blowing) was not possible because without being able to determine what disclosures Mr Oleksak had made to the Polish Embassy, it could not fairly determine that claim. Mr Oleksak had been given the opportunity to give proper disclosure and had not done so. He had been given the opportunity to explain why he had not done so and the Tribunal had found that he had not been frank.[24]In the circumstances there was little else that the Tribunal could do apart from dispose of that part of his claim. There was no other procedural sanction available as it had already granted an adjournment in order for the disclosure to be made.[25]It does not follow (as the remaining ground of appeal points out) that the Tribunal was correct to strike out all of the Claimant's claims. It may well be that the Tribunal's perception of the Claimant's deficiencies as a witness will make his case more difficult but that is not a good reason to deprive him of his opportunity to put his case in relation to the other issues he has raised. The final issue ("he was dismissed because of a unilateral change in his contract") is, it appears, an assertion of unfair dismissal and one on which he could not succeed because he had less than 12 months service. There would therefore be no purpose in remitting that claim to the Tribunal.[26]So far as the others are concerned, in the absence of any valid and explicit reasons as to why the interests of justice required that Mr Oleksak should be deprived of his opportunity to prove his case, we have difficulty in seeing why it was thought appropriate to strike out them out. In particular in relation to the health and safety claim it was not suggested to us that there had not been sufficient compliance with the Tribunal's order for "full details" and like Judge McMullen QC in his judgment on the rule 3(10) hearing "quite why his claims relating to [those matters] should have been struck out is a matter which eludes" us. In our judgment the Tribunal was in error when it took the view that in order to deal with the shortcomings of the Claimant in relation to the whistle-blowing claim. The decision to dismiss the entirety of the claims was not in our judgment one which was necessary in the interests of justice or proportionate. It smacks of a view that because the Tribunal did not accept Mr Olaksek's evidence in relation to one matter it would automatically reject his evidence on all other matters and of an attempt to short-circuit proceedings.[27]In those circumstances we propose to allow the appeal to the extent that we shall set aside the order dismissing the entirety of the Claimant's claims and remit for re-hearing before a different tribunal the whole of the Claimant's case other than the "Polish Embassy whistle-blowing issue" and the "dismissal because of a unilateral change in his contract" issue (issues (ii) and (v) as identified in paragraph 2 of the Tribunal's decision) and the Respondent's cross-claim. The two issues (ii) and (v) remain dismissed.