United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS ALI Wife on behalf of the Appellant
For the Respondent


 


JUDGE PETER CLARK: This is an appeal by Mr Ali, the Applicant before the Manchester Employment Tribunal sitting on 1 May 1998, against that Tribunal's decision to dismiss his complaint of unfair dismissal on the grounds that it was time-barred.

The Appellant commenced employment with the Respondent as a Knitwear Overlooker on 3 September 1988. In early August 1997 he informed Mr Azmi, the Respondent's Managing Director, that he wished to visit his family home in Pakistan where construction work was in progress. He was told, the Tribunal found, that his job would not be kept open for him if he went abroad for an extended period. He was told in terms that if he went for more than two weeks he was finished.

The Appellant went to Pakistan, did not return after 2 weeks, and was replaced.

The Tribunal found made the following findings of fact at paragraphs 5(g)-(i) of their extended reasons:

"5.

g) The applicant during his examination in chief told us that he became aware that he had been dismissed on 21 October 1997. The Chairman asked the interpreter to confirm that 21 October 1997 was the correct date and the applicant through his interpreter confirmed that this was the correct date. The applicant also stated during his cross-examination that he telephone Mr Azmi on 21 October 1997 and he was told that he was dismissed. Mr Azmi, when giving evidence, confirmed that when the applicant telephoned him on 21 October 1997, the applicant was told that he did not have a job.

h) The applicant further informed us that when he was told on the telephone on 21 October 1997 that he had been dismissed he sought legal advice on this day.

i) The applicant attended at the respondents premises on 31 October 1997. We are satisfied that he asked Mr Azmi to provide him with a letter of dismissal to enable him to claim benefits. After the applicant insisted that he be given such a letter Mr Azmi wrote a letter dated 31 October 1997. This letter stated that "You are hereby advised that due to your absence to work for two months without an acceptable reason we have decided to terminate your employment at the company as from 29 August 1997". Also on 31 October 1997, Mr Azmi provided the applicant with a P45 and two weeks' holiday pay to cover the period when the applicant first went to Pakistan."

On 4 November 1997 a solicitor instructed on behalf of the Applicant wrote to the Respondent indicating unfair dismissal proceedings would be commenced if a satisfactory payment was not made.

For the Respondent it was contended that the effective date of termination of the contract was 29 August 1997. The Tribunal rejected that submission and found, on the evidence given by both sides, that the effective date of termination was 21 October 1997, the date on which the Appellant was informed by Mr Azmi that he had been dismissed.

Further, it was apparently conceded by Mr Rimmer, the Appellant's representative before the Tribunal below, (a) that the Appellant said in evidence he was dismissed on 21 October 1997 and (b) that it would have been reasonably practicable for the Appellant to present his complaint within three months of that date, particularly in view of the fact that the Appellant's solicitor had written threatening proceedings on 4 November.

In the event, the unfair dismissal complaint was not presented to the Tribunal until 26 January 1998, 5 days out of time. In these circumstances, the Tribunal dismissed the complaint as being out of time.

In this appeal it is sought to be argued that the effective date of termination was 31 October 1997. That is within the 3 month period for bringing the unfair dismissal complaint. That is simply not sustainable on the facts as found by the Tribunal. Further, it is an attempt to re-open on appeal a point which was conceded below, namely that the effective date of termination was 21 October. That is not permissible as the Court of Appeal has recently said in Jones v Burdett Coutts School (1998) IRLR 521.

Yet further, we are quite satisfied that regardless of that concession, dismissal plainly took effect when it was communicated orally to the Appellant on 21 October 1997. No writing is necessary for an effective dismissal.

In these circumstances, we have concluded that this appeal raises no arguable point of law fit to proceed to a full appeal hearing and accordingly, the appeal must be dismissed at this stage.