United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE PETER CLARK: By an Originating Application dated 8 March 1994 the Appellant, Mr Ross, brought a complaint of unfair dismissal against "Vernolds Ltd trading as Port of Pembroke". He had been employed at the Port as Security Manager from 1 October 1990 until 18 February 1994.

A Notice of Appearance was lodged, naming the Respondent as "Port of Pembroke Ltd In Administrative Receivership". It was there said that the Appellant was dismissed by reason of redundancy, following the appointment of Joint Administrative Receivers on 8 December 1993.

The matter came before an Industrial Tribunal sitting at Cardiff on 11 May 1994 under the chairmanship of Mr Michael Bird. We shall return to that hearing later in this judgment.

This is an appeal against a decision of an Industrial Tribunal sitting at Cardiff on 24 May and 13 December 1996 under the chairmanship of Mr John Thomas. In that decision, promulgated with extended reasons on 13 March 1997, the Tribunal found that the Appellant was unfairly dismissed but refused his application to rejoin as Respondent, Vernolds Ltd. The order was made against Port of Pembroke Ltd In Receivership. The name of the Respondent had been amended by a decision of the Tribunal chaired by Mr Bird sitting on 11 May 1994. In a decision promulgated on 13 May 1994 that Tribunal recorded that the correct title of the Respondent is as shown above, that is Port of Pembroke Ltd (In Receivership) and that the proceedings are amended accordingly by consent.

Mr Ross has told us today that, after the joint receivers were appointed on about 8 December 1993, they being partners in Touche Ross, Accountants, he and other staff were informed that their employer would henceforth be Vernolds Ltd, thus that Company was named in his Originating Application.

He has also shown us a Company search which he carried out on Vernolds Ltd. We see that the registered office of that Company is listed as Blenheim House, Fitzalan Court, Newport Road, Cardiff, CF 2 1TS, which is the address of Touche Ross in Cardiff, according to the Notice of Appearance in this case.

The appeal came on for a preliminary hearing on 12 November 1997 before a division of this Tribunal presided over by Judge Hargrove QC. On that occasion the Tribunal adjourned the hearing so that Mr Bird could be asked for a copy of the consent order made on 11 May 1994 and his notes of the submissions taken that day.

We have before us a letter from Mr Bird dated 11 December 1997, with enclosures. Those enclosures do not include his notes taken on 11 May 1994, nor do they include the decision dated 13 May 1994, although a copy of that has been provided to us by Mr Ross.

In paragraph 12 of the reasons dated 13 March 1997 the Thomas Tribunal concluded that it had no jurisdiction to overturn the decision made by consent on 11 May 1994 to amend the form IT1 to substitute as the Respondent, Port of Pembroke Ltd (In Receivership) for Vernolds Ltd. Alternatively, the merits of joining Vernolds Ltd were not clear-cut and thirdly, Vernolds Ltd would be prejudiced if they were to be brought back into the proceedings at this late stage.

In our judgment it is arguable that the Thomas Tribunal did have power to rejoin Vernolds Ltd. The order made by consent on 11 May 1994 was an interlocutory order. The Appellant brought this claim against his employer. There appears to have been no investigation by the Thomas Tribunal as to who was the true employer or as to the circumstances in which it came about that the Bird Tribunal accepted the Receiver's contention that the true employer was Port of Pembroke Ltd (In Receivership).

On this basis, bearing in mind the authorities referred to in Harvey on Industrial Tribunals and Employment Law, volume 4, paragraph T313 - 340, we shall allow this appeal to proceed to a full hearing and direct that Vernolds Ltd, whose registered office is that given earlier in this judgment, be given a specific opportunity to be added as a party to this appeal. We think it would be particularly helpful if Mr Ellis, one of the Joint Administrative Receivers, was present to assist the Appeal Tribunal which hears the full appeal.

We further direct that this case be listed for half a day; Category C and that there should be an exchange of skeleton arguments and copies lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing.

In the event that Vernolds Ltd choose to apply to be joined as a party, as a Respondent to this appeal, that application may be made in writing and should be directed for my attention.