England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Altman)

		Royal Courts of Justice Strand London WC2 Thursday, 5th July 2001

Thursday, 5th July 2001

1. LORD JUSTICE PETER GIBSON: This is the adjourned hearing of an application by Mr Metanie for permission to appeal out of time from the order of the EAT on 21st November 2000. Thereby the EAT dismissed Mr Metanie's appeal from the decision of an Employment Tribunal sitting at London (North) on 26th February 1998. The Tribunal dismissed Mr Metanie's application by which he had complained of, amongst other things, breach of contract and unfair dismissal.
2. At the earlier hearing on 8th June I directed that the case be adjourned in the following circumstances. At the outset of the hearing I told Mr Metanie that I was not troubled by him being out of time by a few days over Christmas 2000. Mr Metanie then informed me that, in a letter from the Civil Appeals Office telling him of the hearing date, he had been told that the hearing would be limited to the question whether there should be an extension of time for the application for permission to appeal. He told me that he was not in a position to argue his case for permission to appeal on that day. I asked him for the letter from the Civil Appeals Office. He did not have it with him, he said. In the circumstances there was no practical alternative to adjourning the hearing. But I asked him to supply a copy of the letter from the Civil Appeals Office, a judgment of the EAT to which he had made reference in the skeleton argument as well as an order of the EAT on which he relied. On 18th June he wrote a letter to the Civil Appeals Office enclosing a copy of the judgment but not the letter from the Civil Appeals Office or the EAT order. In his letter he said:

"I apologise unconditionally in relation to my allegation that the office send me a letter as to the hearing being of an extension of time exclusively. For three weeks before the hearing I suffered from a chest virosis, I had fever and coughing. All this affected my abilities to properly prepare the said hearing.

... . I feel a lot better now and hopefully everything would be ok on 5/7/2001."

3. That is an admission by Mr Metanie that he had not told me the truth on 8th June. I have procured a copy of the letter sent to Mr Metanie by the Civil Appeals Office on 3rd May 2001. That states:

"The application for permission to appeal and an extension of time under reference" [then the reference number is given] "will be heard in a courtroom open to the public without notice to any other party ... . The hearing will take place at the Royal Courts of Justice, Strand, London, WC2 on 8 June 2001 at or after 10.00 a.m."

4. That is unequivocal and clear in its message that the hearing was to cover the question both of permission to appeal and an extension of time.
5. As a result of Mr Metanie misleading the court, the hearing was adjourned, and, in consequence, there had to be a second hearing, with this court having to prepare itself for that hearing for a second time.
6. It is to Mr Metanie's credit that he has acknowledged his fault and apologised unconditionally before this adjourned hearing. But I have to say that his conduct in deliberately lying to me to obtain an adjournment was outrageous. He had five weeks' notice of the hearing on 8th June. He says that he was unwell. If that is true, he could have applied for an adjournment on the ground of ill-health and should have supported that by a medical certificate from his doctor. He chose not to do so. He procured an adjournment by a lie and he has wasted the time of this court in consequence. That conduct cannot be tolerated. In my judgment Mr Metanie's application deserves to be dismissed by reason of his misconduct alone. He had his opportunity on 8th June to advance his argument in support of his application for permission to appeal. By reason of his lie to this court he did not take it.
7. But I would not wish Mr Metanie to leave this court believing that but for that foolish behaviour he would have succeeded in his application. I would dismiss his application for the further reason that his appeal has no real prospect of success and no other compelling reason has been given why his appeal should be heard.
8. Before I consider his grounds of appeal I should set out briefly the background. Mr Metanie was employed by Research Engineers Ltd on 27th January 1992. In November 1992 that company's shares were acquired by the parent company of the respondent, Telegan Gas Monitoring ("Telegan"), and there was a transfer of the employer's undertaking within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to Telegan. Mr Metanie worked in the service department at Telegan's Shoreditch site as a repair technician. After three months it became clear to Telegan that it was not economically viable to keep that site open and the operation there would be moved to Crawley, where Telegan also operated. The Shoreditch staff were told that they could transfer to a similar position in Crawley or take redundancy. The Tribunal accepted that Telegan took an economic and organisational decision to transfer the service department at Shoreditch to Crawley. Mr Breen, the managing director, offered Mr Metanie the same position of repair technician at Crawley, but Mr Metanie refused, indicating that he did not want a transfer. There were no other suitable vacancies to offer him.
9. Mr Metanie was on sick leave at the time of the proposed closure. There were no formal written consultations with him about the closure.
10. Mr Metanie had connections with Romania. On 17th June 1994 he became Telegan's representative for selling its products there. The Tribunal found that by an agreement with Mr Collins, Telegan's sales and marketing manager, Mr Metanie would receive a commission of 10% of the sales value of all successful sales.
11. Mr Metanie was dismissed for redundancy on 27th June 1997. At the time he was the only full-time employee in the service department at Shoreditch.
12. On 3rd September 1997 he applied to a tribunal complaining of: (1) breach of contract;

(2) equal pay;

(3) unfair dismissal.

13. His equal pay complaint was not pursued. His case, conducted in person before the Tribunal, was that he had been unfairly dismissed and was not redundant, and that Telegan, in breach of contract, had failed to pay him 20% commission on sales to Romania.
14. The Tribunal found that the reason for Mr Metanie's decision was redundancy. It accepted that ordinarily an employer must ensure that the procedure adopted for redundancy included consultation for the affected employees so as to give them a fair opportunity to make representations or propose alternatives. But the Tribunal accepted that Telegan had properly concluded that formal consultation was utterly futile, Mr Metanie being aware of the relocation and the reasons for it. It found that a real redundancy situation existed because of the closing of the Shoreditch site. The Tribunal considered that Telegan, which had offered Mr Metanie alternative work, did all it could in the circumstances and acted reasonably in dismissing Mr Metanie. It found no breach of contract in relation to commission. It rejected Mr Metanie's evidence on this and accepted Telegan's evidence that the commission was 10% and that it had been paid.
15. Mr Metanie appealed to the EAT. At a without notice preliminary hearing the EAT allowed his case to go to a full appeal on two points but two points only:

(1) the finding that consultation was utterly futile; and

(2) the finding of a 10% commission rate.

16. In the judgment of the EAT delivered by His Honour Judge Altman it directed that skeleton arguments be presented to the EAT within not less than 14 days before the hearing date for the appeal. Mr Metanie tells me that in the order made by the EAT the parties were also required to exchange skeleton arguments within the same timescale. Although the order was one of the documents which I asked to be supplied to me, Mr Metanie has failed to supply that document. However, His Honour Judge Harold Wilson giving the judgment of the EAT on 21st November 2000 at the appeal hearing refers to the order in the terms described by Mr Metanie, and I shall assume that to be correct.
17. Mr Metanie took a preliminary point before the EAT at that full hearing of the appeal that he had not received a skeleton argument in the time directed. What happened was that Telegan's skeleton argument was sent by its solicitors on 6th November to the EAT and to Mr Metanie at the address which the solicitors had for him. However, four days earlier Mr Metanie had notified Telegan, but surprisingly not its solicitors, that he had changed his address. That fact was not passed on by Telegan to its solicitors. Mr Metanie received a copy of Telegan's skeleton on 15th or 16th November, that is to say five or six days before the hearing. Mr Metanie nevertheless applied, under rule 26 of the Employment Appeal Tribunal Rules 1993, that Telegan be debarred from taking any further part in the proceedings. Judge Wilson in the EAT's judgment noted that Mr Metanie did not suggest that he was prejudiced in any way and refused that application.
18. On the consultation point, the EAT said that the finding that consultation would have been utterly futile was one open to the Tribunal on the evidence and that, as a matter of law, it enabled the Tribunal to find the dismissal fair because of Polkey v AE Dayton Services Ltd [1987] IRLR 503 in which the House of Lords had recognised that there was such an exception from the ordinary obligation to consult. On the permission point, the EAT referred to an objection by Mr Metanie that documents relied on by the Tribunal as supporting a commission rate of 10% were forgeries. The EAT said that that allegation had not been raised before the Tribunal. The EAT referred to the notes of evidence, which had been ordered to be supplied and had been supplied by the Chairman of the Tribunal, and to the statement on 8th February 2000 by the Chairman when asked to comment that there was no suggestion in the Tribunal by Mr Metanie that any of the documents relating to the commission were forged. The EAT therefore rejected this point too.
19. Mr Metanie now seeks permission to appeal on a number of grounds. First he says that the EAT "acted illegally, was biased and perverse by totally ignoring the provisions of rule 26". That provides so far as material:

"... if any party fails to comply with an order or direction of the Appeal Tribunal, the Tribunal may order that he be debarred from taking any further part in the proceedings, or may make such other order as it thinks just."

20. Mr Metanie says that the EAT had to make an order. But the rule says "may", not "shall". It would be wholly unjust for the EAT to make a punitive order in circumstances such as obtained in this case where Mr Metanie did not notify Telgan's solicitors, who were the persons likely to be serving Telegan's skeleton argument under the EAT's direction of 20th November 1999, of his change of address, particularly as Mr Metanie did not suggest to the EAT that he had suffered prejudice. In effect, the EAT extended time, which of course it had power to do under rule 32 of the 1993 Rules. There is nothing in this point.
21. Next Mr Metanie seeks to extend the grounds on which the EAT at the preliminary hearing allowed him to pursue his appeal so as to encompass a point on the identity of his employer and on the rules relating to transfers of undertakings. He cannot do that. He is limited to the question of the finding that consultation would have been futile and to the commission point. He seeks to suggest that Polkey is outdated and superseded. He says that that is because of cases decided by the European Court of Justice relating to the duty of an employer to consult employees' representatives on a transfer of an undertaking. That cannot be a relevant point on the appeal given the limits on the grounds of appeal. He further refers to the Trade Union and Labour Relations (Consolidation) Act 1992 and the definition of "redundancy" in section 195 of that Act. But he ignores the fact that that definition is expressly limited to Chapter II of that Act, which imposes duties on employers proposing to dismiss as redundant more than 20 employees at a single establishment. It does not impose a duty to consult employees. It is a duty to consult employees' representatives. That was not a point which was gone into at all, because it was simply not raised by Mr Metanie before the Tribunal. In any case, Chapter II relates to a quite different matter. It enables the Tribunal to make a protective award where an employer has failed to consult employees' representatives in the circumstances specified. It would require specific findings to support any such complaint. It is nonsense to suggest that Polkey is in any way affected by the 1992 Act, which in any event is a consolidation Act re-enacting provisions previously contained, for example, in the Employment Protection Act 1975. Again, this point is quite hopeless.
22. Third, Mr Metanie challenges the finding on the commission rate. He argues that the documents which were relied on by Telegan and by the Tribunal in giving its decision were, as he put it, clear forgeries. He should have taken that point before the Tribunal, but he did not. He says that the EAT at the preliminary hearing "were fully and unanimously already satisfied that the documents were undoubtedly forged". How could they be on a preliminary hearing of an appeal without hearing oral evidence or submissions from Telegan? All that they do is to point to some curious features of the two documents. He has put before me a document from the police in response to a letter dated 6th November 2000 suggesting that a file from the Employment Tribunal has gone missing. He says that this shows that the Tribunal itself is participating in some sort of misconduct. I cannot see that that document shows anything of the sort. It is dated 8th December 2000. I know not what the position was between February 2000 and December 2000. In February 2000 the Chairman produced his notes and made the comments to which I have already referred. In my judgment, as Mr Metanie did not take the forgery point before the tribunal of fact, the EAT cannot be criticised for saying this is not a point on which he can succeed. In my judgment there is no prospect of success on this point either.
23. Finally, Mr Metanie asserts that Article 6 of the European Convention on Human Rights was breached by the Tribunal and the EAT. Apart from the fact that Mr Metanie did not succeed and that the Tribunal preferred Telegan's witness to Mr Metanie's own evidence, as was the Tribunal's right as the tribunal of fact, I can see no basis whatever for this wholly unparticularised complaint.
24. This thoroughly unmeritorious application must be dismissed.
Order: Application dismissed.