United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 377_93_2103

Appeal No. PA/377/93, EAT/558/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR A FERRY MBE

MR K M HACK JP

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MR A THEYER          APPELLANT

THE POST OFFICE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY

OR REPRESENTATION

ON BEHALF OF THE

APPELLANT

For the Respondents NO APPEARANCE BY

OR REPRESENTATION

ON BEHALF OF THE

RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT): On these appeals the Tribunal has been notified by the Appellant, Mr Theyer, that he is unable to attend the hearing today. He has explained that he is unemployed, that he is not entitled to legal aid for the appeal, and that he cannot afford legal assistance and travel expenses. He has therefore submitted his arguments to the Tribunal in writing and has asked the Tribunal to deal with his case on written representations in his absence.

There are two appeals. The first is Mr Theyer's appeal against the order of the Registrar refusing him an extension of time for bringing an appeal to this Tribunal against the decision of the Industrial Tribunal. His second appeal is against the decision of the Industrial Tribunal refusing to grant him a review of their decision.

I will deal with first of all the appeal against the Registrar's order refusing an extension of time. Mr Theyer presented his Notice of Appeal against the decision of the Industrial Tribunal thirty-five days out of time. The decision which he complained of was made on the 29 January 1993. The decision of the Industrial Tribunal was notified to the parties on the 10 February 1993. Mr Theyer did not send his Notice of Appeal until the 15 May 1993. The Notice was received in the Employment Appeal Tribunal on 18 May 1993.

He gave notice, by the letter which accompanied his Notice of Appeal, of an application for an extension of time. The Registrar of the Employment Appeal Tribunal dealt with his application on the 8 July on the basis of further representations from Mr Theyer by letter, and representations from the Post Office, the Respondents to the appeal. On the 8 July the Registrar ordered that the application for an extension of time should be dismissed. On the 21 September Mr Theyer notified the Registrar that he wished to appeal against the decision, refusing an extension of time.

He has submitted that he should have an extension of time for reasons stated in his enclosed documents. The Tribunal also has a letter from the Post Office objecting to the appeal being allowed. The Post Office point out that at the Industrial Tribunal Mr Theyer was represented by Counsel. He had the benefit of legal advice from his Counsel and Solicitors, and it was reasonably practicable for him to have presented his appeal against the decision in time.

It is submitted by the Post Office that Mr Theyer has not shown any valid reason to the contrary. The reasons given by Mr Theyer to explain the delay for appeal are that he relied on Counsel to guide him and present all the information that he needed for his case. He says that Counsel failed to do this. He was ill-informed. He was also dissatisfied with the Solicitor who had been representing him. He encountered further delay when his application for a review had been turned down. The delay was involved in going back to his Solicitor for advice. He then took his case to the Citizens Advice Bureau. He says that they could not possibly digest the amount of information he presented to them in any reasonable amount of time. A further delay was caused when the Citizens Advice Bureau put him in touch with another Solicitor.

For these reasons, he says, he should be granted an extension of time. We are unpersuaded that he should be granted an extension of time. He may be dissatisfied with the advice he received from those who formerly represented him. He may be dissatisfied about the time it took to get the appeal on with the help of the Citizen Advice Bureau. None of these matters however, amount to a satisfactory reason for the delay. Time limits are time limits. There is a generous time allowed for bringing an appeal to this Tribunal. In our judgement the Registrar was right to refuse an extension. There are no grounds for appealing against her decision. We therefore dismiss the appeal against her order.

On the second matter Mr Theyer wishes to appeal against the review decision of the Industrial Tribunal. It is necessary to explain a little of the background to that point. On the 26 March 1992 Mr Theyer presented to the Industrial Tribunal an application for unfair dismissal by the Post Office. He had been employed as a Postman from the 6 September 1971 down to the 28 December 1991. He said he had been dismissed unfairly. The Post Office alleged that he had made fraudulent claims in respect of overtime payments. He rejected that completely. He thought that he had been treated very shabbily after twenty years of good service.

The Post Office contested the complaint. The case of the Post Office was that Mr Theyer was dismissed for reasons relating to his conduct, namely that it was believed that he had committed a serious offence under the Post Office disciplinary procedures in the form of submitting fraudulent claims for overtime, for July and August 1991. Previous awards of serious offences were taken into account in deciding to dismiss him. The Post Office contended that, in the circumstances, they had acted reasonably in treating this as a sufficient reason for dismissing him and due regard had been had to the equity and substantial merits of his case.

The Industrial Tribunal heard the case sitting at Manchester on the 6 November 1992 and the 26 January 1993. For reasons notified to the parties on the 10 February 1993 the Industrial Tribunal unanimously decided that the application failed. In the full reasons for the decision the Tribunal referred to the history of Mr Theyer's employment as a Postman and to warnings which he had previously received for serious offences. They gave accounts of an investigation which took place in the summer of 1991, after the delivery office manager had formed a suspicion that Mr Theyer was claiming overtime for work, which had not been worked by him.

After reviewing the evidence the Tribunal concluded that the Post Office had shown that the reason for the dismissal was a reason relating to his conduct within the meaning of Section 57(2) (b), namely the Post Office's belief that he had acted fraudulently in claiming overtime in July and August 1991. The Tribunal referred to the investigations which had been carried out and the Reasons to Urge interview in September. The Tribunal accepted the submissions of the Post Office that the investigations, together with documentary evidence, and Mr Theyer's verbal and written responses to requests for explanations, formed a basis for a reasonable belief that he had falsely claimed overtime on the date alleged.

The Tribunal's conclusion was therefore that the Post Office had acted reasonably in all the circumstances in treating a belief of his misconduct as a sufficient reason for dismissing him. We have already dealt with the appeal out of time, against that decision. Mr Theyer then sought a review of the decision of the Industrial Tribunal. That was dealt with by the Chairman in a decision notified to the parties on the 18 March 1993. Mr Theyer had applied by letter of the 21 February for a review under Rule 10 of the Industrial Tribunals Rules of Procedure Regulations 1985. The Chairman rejected the request on the grounds that it had no reasonable prospects of success. The ground of the application was that Mr Theyer indicated that evidence that was not before the Tribunal might, if it had been presented to the Tribunal, had effected the Tribunal's decision. The Chairman observed that it was not suggested by Mr Theyer that the new evidence had become available since the conclusion of the hearing. She referred to the provisions in Rule 10(1) (d) in its reference to new evidence that becomes available after the conclusion of the hearing.

The Chairman found that Mr Theyer was seeking to re-argue the case with a view to persuading the Tribunal to give a different weight to some of the evidence which had been heard to revise its findings of fact. The findings of fact by the Tribunal were on the basis of evidence and arguments put before the Tribunal. The decision had been promulgated. There were no grounds for hearing further argument on the same evidence.

Mr Theyer submitted, in support of his appeal against the refusal of a review, a whole mass of material. None of this material discloses that there was any error of law on the part of the Chairman of the Industrial Tribunal in refusing a review of the original decision. In those circumstances this Tribunal has no jurisdiction to entertain the appeal. There is no point in the matter proceeding to a full hearing, as there is no arguable point of law.

We accept the submission of the Post Office in its letter to this Tribunal dated the 14 March, that the evidence which Mr Theyer sought to be relied on was not evidence which had become available to him for the first time after the conclusion of the hearing. In fact, Mr Theyer is seeking to rely on material which he had submitted to his Counsel prior to the hearing before the Industrial Tribunal. We accept the Post Office's argument that the Industrial Tribunal were correct in refusing a review on the basis of evidence available at the time of the original hearing. For all those reasons Mr Theyer's second appeal is also dismissed.