United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: By an Originating Application presented to the Ashford Employment Tribunal on 1st September 1998, Mr Godfrey claimed arrears of wages and one week's pay in lieu of notice from his former employer, Mr Versi, the owner of the Woodside Residential Home in Kent. He gave as his period of employment with that respondent the dates 8th June - 16th July 1998.

By a Notice of Appearance dated 9th September 1998 the respondent resisted the claims. He contended that the applicant was employed only from 26th June until termination on 16th July 1998 and that he had received all monies due to him.

The case was listed for hearing on 28th October 1998 and a Notice of Hearing sent out in advance. When the case was called on before a Chairman, Mr D E de Saxe, sitting alone, only the applicant was present. There was no attendance by or on behalf of the respondent and no explanation provided at that stage for his absence. The Chairman proceeded to hear and determine the complaint, taking account of the respondent's Notice of Appearance as his written representations under Rule 9(3) of the Employment Tribunal Rules of Procedure.

Having heard the applicant's evidence, which he accepted, the Chairman found as a fact that the applicant was employed at the home from 9th June until 15th July 1998. Based on the agreed salary of £800 per month gross, he concluded that the applicant had been underpaid wages in the sum of £74.26 net, and that in addition the applicant was entitled to one week's net pay in lieu of notice in respect of his summary dismissal by the respondent, the applicant having completed one month's service for the purposes of s. 86(1)(a) of the Employment Rights Act 1996. One week's net pay was calculated to be £167.38. Thus, the total award was £241.64.

Following promulgation of the Chairman's decision with extended reasons on 2nd November 1998, the respondent applied for a review of that decision by a letter dated 20th November 1998.

He there claimed that he had not received Notice of Hearing due to his being abroad for a long time. He returned on 26th October 1998 and did not open the letter containing the Notice until the evening of 28th October 1998. By then it was too late to attend the hearing.

Further, he contended that the Chairman's decision was wrong, based on his (the respondent's) version of the facts, which he said was supported by correspondence. He requested a rehearing, at which he could call his former manager to give evidence.

By letter dated 24th November 1998 the Chairman dismissed the application for review on the grounds that it had no reasonable prospect of success. Consequently the respondent launched this appeal by a Notice dated 27th November 1998.

The grounds of appeal mirror those of the application for review and Mr Versi has appeared before us today.

As to the respondent's non-attendance at the hearing on 28th October 1998, it seems to us that the Chairman was entitled to proceed with the hearing in his absence under the provisions of Rule 9(3). Rule 11(1)(c) provides a power to review a decision reached in the absence of a party. However, that party must show good cause for his absence, for example, illness on the way to the tribunal hearing. See Morris v Griffiths [1977] ICR 153. Here, the respondent received the Notice of Hearing which he had directed the tribunal to send to his home address. He was abroad in Canada for four weeks, he tells us, until his return on 26th October 1998. At that stage he had the opportunity to discover that the hearing was due to take place on 28th October 1998. However, he failed to open his post, or at any rate the relevant letter from the tribunal giving Notice of Hearing, until the evening of 28th October 1998. Bearing in mind that the respondent is a businessman, we cannot think that that is a good reason for failing to attend the hearing. Certainly, in our judgment, the Chairman was entitled to dismiss the application for review in the absence of a good reason for absence being advanced.

It also follows that the Chairman at the hearing was entitled to prefer the evidence of the applicant to the written representations contained in the Notice of Appearance and attached documents submitted by the respondent. There are no grounds in law for interfering with that decision.

Further, because Mr Versi tells us he has pursued this appeal as a matter of principle rather than because of the small amount of money involved, we should say that we are not satisfied that even had the respondent attended the hearing the result would necessarily have been any different. Having considered the exchange of correspondence between the parties produced to us by the respondent, we not that in his letter of 20th June the applicant contended that he would have completed a two week trial period by 25th June. The respondent's wage system provided for each pay month to end on 25th. The Chairman accepted the applicant's evidence that he had, in error, put the date 19th June, instead of 9 June on the Inland Revenue form which he signed and dated 24th June and on which the respondent relies. The respondent paid the applicant a full half month's salary to 25th June. In these circumstances whilst there were plainly factual issues to be determined, we are satisfied that this is not a case in which the respondent has shown conclusively that the applicant misled the Chairman in the evidence which he gave at the hearing. In these circumstances, our jurisdiction being limited to correcting errors of law, we shall dismiss this appeal.