United Kingdom Employment Appeal Tribunal

 


BAILII case number: [1994] UKEAT 372_92_1905

Appeal No. EAT/372/92

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 May 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D G DAVIES

MR K M YOUNG CBE

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MR R FYFE          APPELLANT

TRESCO ESTATE - MR R DORRIEN-SMITH          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR ON BEHALF OF THE           APPELLANT

For the Respondents


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Industrial Tribunal held at Truro on 1 April 1992. For the full reasons stated by the Tribunal in the decision notified to the parties on 8 April 1922, it was unanimously decided that the application made by Mr Fyfe under the Wages Act 1986 should be dismissed as being out of time. The application was made by Mr Fyfe against his former employers, Tresco Estate which is carried on by Mr Dorrien-Smith.

The substance of the complaint made by Mr Fyfe was that there had been unlawful deductions from his wages contrary to section 1(1) of the Wages Act 1986. A preliminary hearing was held by the Industrial Tribunal to decide a number of points. First, whether a document dated 19 December 1991 should be construed as amounting to an originating application to the Industrial Tribunal. The document was not on the Form IT1. The question arose whether it contained all the information required by the Rules for the purposes of constituting an originating application.

The second question was whether the originating application was presented within the time limit provided by section 5 of the Wages Act. The relevant provisions state:

"(2) An industrial tribunal shall not entertain a complaint under this section [5] unless it is presented within the period of three months beginning with-

(a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made,

...........

or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the relevant period of three months."

The third question was whether there are any grounds for an extension of the period under section 5(2).

In a full decision the Industrial Tribunal set out the history of the matter. The crucial point is that the letter of the 19 December 1991, setting out Mr Fyfe's complaint to the Secretary of Tribunals, did not identify the name of his employer. The Rules of the Industrial Tribunals, then in force, contain in Schedule 1 Rule 1, the requirements an originating application must satisfy. It is provided:

"1(1) Proceedings for the determination of any matter by a tribunal shall be instituted by the applicant ...... presenting to the Secretary of the Tribunals an originating application, which shall in writing and shall set out:-"

Certain matters are then identified. One of the matters which must be set out is:

"1(1)(b)the names and addresses of the person or persons against whom relief is sought or (where applicable) of the parties to the proceedings before the court;"

By forgetfulness, Mr Fyfe did not include, in the letter of 19 December 1991, the name of the employer making deductions from his wages. The deductions, which he said were unlawfully made, appeared from a payslip received by him on 24 September 1991 and from a cheque which he would have received on 26 or 27 September 1991. If the letter of 19 December had included the name of the employer there would have been no problem; the dates set out in the Tribunal's decision show that the application, in the form of the letter, was received within the three month period.

The Tribunal decided correctly that the fact that the Form IT1 had not been used and that the application had been made by letter did not in any way debar Mr Fyfe from proceeding. What did debar him from proceeding was the fact that the letter did not identify something the Rules required. The Tribunal's account of the facts then show that the name of the employer was not, in fact, provided by Mr Fyfe to the Industrial Tribunal until after the expiration of the three month period. It was provided by the end of January 1992.

In those circumstances the Tribunal held, first, that it was possible to proceed by letter dated 19 December 1991, subject to complying with the Rules; secondly, that the originating application letter did not comply with the Rules; thirdly, that it was not possible to be satisfied, as required by section 5(2) of the Wages Act 1986, that it was not reasonably practicable for the complaint to be presented within the relevant period of three months. It was reasonably practicable to present it in that time. The only reason that it was not presented in that time was through Mr Fyfe's forgetfulness.

The Tribunal found in a crucial paragraph of their decision, this:

"..... As in evidence he [Mr Fyfe] said to us that the only reason why he did not put it [the name and address of the employer] in was that he forgot, we cannot see that it was reasonably practicable for him to present his complaint within the time limit."

My Fyfe's application was, therefore, dismissed. He was dissatisfied and he sought a review from the Industrial Tribunal. The Chairman gave reasons on 13 May 1992 for refusing the application for review. He stated that, in his opinion, the application had no reasonable prospect of success for the reasons set out.

Mr Fyfe was disappointed at the failure of his application. He decided to appeal, by notice of appeal dated 20 May 1992. We are unable to find in the notice of appeal and supporting documents submitted by Mr Fyfe any error of law on which he could succeed in this appeal. The decisions of the Industrial Tribunal were decisions on matters of fact to which were then applied the correct provisions of the Rules and the 1986 Act. There is, therefore, no error of law.

We have given our decision at some length because we were notified that the Respondents were not intending to appear on this appeal. We were also notified, just two days ago, by Mr Fyfe's father that his son had, unfortunately, suffered severe injuries while overseas and was in hospital. For that reason he would not be able to attend the hearing. His father said in the letter:

"He [Mr Fyfe] sends his apologies and trusts that the Hearing will reach a satisfactory conclusion in his absence."

The conclusion we have reached will not seem satisfactory to Mr Fyfe, or his father, but it is a conclusion reached on a full consideration of the Decision of the Industrial Tribunal, the Review Decision of the Chairman and all the documents which Mr Fyfe had placed before this Tribunal. For all those reasons this appeal will be dismissed as disclosing no error of law.