United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SWIRSKEY (of Counsel) Messrs Chadwick-Healey & Co Solicitors 4 Brabant Court Philpot Lane London EC2M 8AD
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE MORISON (PRESIDENT): There are two appeals with which we must deal. The first relates to a question as to the extension of time for filing a Notice of Appeal. The Notice of Appeal was served on us on 17th May 1996. The Industrial Tribunal decision against which the appeal is brought was dated 28th September 1994. Accordingly part of the Notice of Appeal was well out of time. The Registrar refused to extend time by her decision dated 6th August 1996. There is an appeal against her refusal.

Under the principles set out in United Arab Emirates v Abdelghafar the first requirement in a matter such as this is for appellant to provide the Employment Appeal Tribunal with a full and honest explanation of the reasons for delay. In this case, it is the appellant's contention that the Industrial Tribunal proceedings which led to the decision on 28th September 1994, took place behind his back, in the sense that he was unaware of the hearing and was unaware of the tribunal's decision; and only became aware of it in July 1995 when enforcement proceedings in the County Court were in progress and he was served personally with a document requiring him to attend for an oral examination.

Assuming for the moment that that is correct, namely that he first became aware of the decision of the tribunal in July 1995, it was then incumbent upon him, in my judgment, to move with all due speed. In relation to an appeal to this Court, there is a 42 day time limit period which is generous. The period is a limit and not a target to be aimed at. It seems to me, despite the able arguments of Mr Swirskey on his behalf, that there is no good explanation put forward for the delay in launching an appeal against the tribunal's decision. It is no answer for a late appellant to say that he first of all was going to try and put right the apparent injustice by seeking a review; the rules are quite clear. If one looks at the Abdelghafar decision, the fact that an application for a review is pending before the Industrial Tribunal, will not generally be accepted as a good reason or excuse for not proceeding with a Notice of Appeal.

In these circumstances, we are satisfied that the Registrar's decision was correct not to extend time.

The second matter with which we are concerned, arises out of a decision by the tribunal which was given in a written document sent to the parties on 9th April 1996, refusing the appellant's application for a review of the decision which had been promulgated in September 1994. The appeal against this decision of the Industrial Tribunal was within the time limit, and therefore the purpose of this part of the hearing has been to determine whether there is an arguable point of law in relation to this appeal.

Mr Swirskey has attractively presented the following argument. He says that an Industrial Tribunal should not, without hearing evidence, reach the conclusion that an appellant who says he was unaware of proceedings was in fact aware of them, without first giving him an opportunity of presenting oral evidence. He says that that effectively is what the Industrial Tribunal have done in refusing to grant a review, and accordingly, they have arguably erred in their approach.

He says, secondly, that the interests of justice would require the tribunal to consider the matter if it transpires that the appellant really was unaware of the proceedings in 1994 and he has a proper defence to them. It would be quite unjust for him, in those circumstances, to be faced with a liability to several thousand pounds.

It seems to us that there is no arguable point of law raised by the Notice of Appeal. If one looks carefully at the reasons given for the refusal to grant a review, it was, as we see it, based upon the fact that there was no reason why the time for the application for a review should be extended.

In the circumstances, already outlined, it will be apparent that even if the appellant really was unaware of the proceedings in 1994, he became aware that the tribunal had made a decision against him by July 1995. It seems to us that he should have acted promptly and immediately thereafter. Indeed, we find it surprising that he did not immediately go round to the Industrial Tribunal offices and complain about them doing justice behind his back, and asking for an explanation as to what had taken place, and then to have launched, immediately, an application for a review of their decision. Instead, he waited for more than 14 days, in fact he waited for a period of about three months.

It seems to us, in those circumstances, that the Industrial Tribunal was quite entitled to say that time for making a review would not be extended. Indeed, Mr Swirskey has been unable to advance to us any reasonable excuse as to why such an application had not been presented to the tribunal before October 1995. He says, and I am sure this is correct, that the appellant had a lot of matters on his plate at that time through the enforcement process. We do not regard that as in any way justifying or excusing a delay.

It must have been apparent to him that the decision had been given as long ago as September 1994, and that if justice was to be done between the parties, it was essential that the matter was dealt with extremely promptly thereafter. As it is, the employee who succeeded has been kept out of his money. We were not impressed by the suggestion that the interest provisions will cure the injustice that would arise if time was to be extended in this case. It seems to us that the justice of the case requires a balancing between the interests of both parties. So far as the employee is concerned, it seems to us that it is in his interests that he should now be paid the money which the tribunal adjudged to be due to him by their decision of 28th September 1994. We understand the position which the appellant finds himself in, but it seems to us that it is largely of his own making. Accordingly, we refuse the appeal against the refusal by the tribunal to review their decision, and we will dismiss that appeal.

Legal Aid taxation granted to the appellant.