United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS D GRENNAN (of Counsel) Instructed by: Messrs Foot Anstey Sargent Solicitors 4-6 Branfield Crescent Exeter EX1 1RF
For the Respondent	MS C STROUD (Solicitor) c/o Free Representation Unit 65 Fleet Street London EC4Y 1HS


 


HIS HONOUR JUDGE J BURKE QC

The Facts

1. Mr Gill was employed by Bowley Data Systems Ltd, who are based in Cullompton in Devon, as a Technical Consultant from 16 August 2000 to a date between, at the earliest, 12 October 2001 and at the latest 31 December 2001; for reasons which we will explain, we have to determine on which date that employment came to an end.
2. There is no doubt that Mr Gill presented an Originating Application to the Tribunal complaining of breach of contract and unfair dismissal. Just as the date of termination of his employment was in issue, so the date on which he validly presented an Originating Application to the Tribunal was in issue. Both issues were relevant to the decision which fell to be made by the Employment Tribunal sitting at Exeter and chaired by Mr J G Hollow. That decision was whether Mr Gill's Originating Application had been presented within the period of three months from the date of the termination of his employment, which section 111 of the Employment Rights Act 1996 provides as the statutory time limit for the presentation of an unfair dismissal claim, subject to the Tribunal's discretion to extend that time where an Applicant establishes that it was not reasonably practicable for him to present his Originating Application within the prima facie period. The issue of reasonable practicability has not yet been determined, should it be necessary to determine it.
3. Mr Gill was originally employed for a probationary period which continued until mid-February 2001 when he was given a new post as Senior Technical Consultant. His conditions of employment entitled him to two month's notice of termination; indeed, each party was entitled to two month's notice from the other.
4. In September 2001 Mr Gill and his employers fell out. After various discussions and meetings Mr Gill provided a letter dated 23 September to Mr Foan, the employer's Managing Director, which said:

"You will appreciate that under such circumstances, taking into account BDS Solutions previous history of inaction and prevarication, that to continue working for the company would be inappropriate and I now give notice of my leaving as of December 31^st 2001."

5. By that letter Mr Gill was plainly giving notice to determine his employment on 31 December 2001. The notice period he gave was more than three months but it did not and could not be suggested that it was not a valid notice; and, if nothing more had occurred, his employment would have ended pursuant to that notice at the end of 2001. However, it was the employer's case, to quote from their Notice of Appearance, that:

"On acceptance of his resignation, it was mutually agreed and confirmed by letter on 1^st October…that he would work for two weeks and then receive one month's salary in lieu of notice from Friday, 12^th October 2001;

his last working day was the 12^th October 2001;

his employment completion date was confirmed as the 12^th November 2001…"

6. It was Mr Gill's case that the date of 12 October on which he ceased to work was imposed on him, he had not agreed to stop working then or to end his employment on any date earlier than 31 December 2001. The Tribunal preferred Mr Gill's evidence and found that, in stopping work on 12 October, he was reacting to the employer's requirements and not acting pursuant to any agreement between him and the employers.
7. The employers alternatively argued that if there had not been an agreement as to when Mr Gill would stop working and his contract of employment would end, then they had on 1 October, by a letter, dismissed him. The letter in its relevant parts said:

"The standard one month's notice, referenced in your Senior Technical Consultant job description, will therefore apply and we will pay you one month's salary in lieu of notice from Friday 12^th October 2001 to accommodate the Helpdesk cover you have committed to over the next fortnight."

8. As to the second factual issue, the presentation issue, Mr Gill said that he had presented an Originating Application to the Tribunal offices by hand at about 5.45 p.m. on 30 January 2002. It appears that there is a letter box on the exterior of the building in which the Tribunal has its offices. Those offices are on the second floor. We are told by Miss Grennan, who has appeared on behalf of the employers, that the formal address for the Tribunal on its letter heading actually states that the address is 'Second Floor'; but there was no evidence, as far as we are aware, before the Tribunal that Mr Gill knew of that part of the address. The letter box is not marked with the Tribunal's name. It serves the Tribunal and other occupants of the building. It is obviously a letter box for the building as a whole from which those who occupy the building can have documents placed inside it provided to them, once they have reopened their offices.
9. Mr Gill's evidence was that he, at the time and date we have mentioned, placed his Originating Application in that letter box. Having heard nothing further from the Employment Tribunal for some time, as Mr Gill told the Tribunal, he contacted the Tribunal office and was told that no Originating Application had come to their attention; they had not found it. He therefore presented another Originating Application on 8 March, this time taking care to hand it to a member of the staff.
10. Because the Tribunal found that the effective date of the termination of Mr Gill's contract of employment was 31 December 2001 this second Originating Application, having been presented before 31 March 2002, was within the prima facie time limit. Therefore, the Tribunal did not need to decide, firstly, whether Mr Gill's account of posting his first Originating Application in the communal post box was true and, secondly, find whether if true that amounted to sufficient presentation. They therefore did not make any decisions on those issues.
11. The employers appealed against the Tribunal's decision by a Notice of Appeal dated 19 August 2002. At the Preliminary Hearing of that appeal on 18 October the Employment Appeal Tribunal, presided over by His Honour Judge McMullen QC, permitted the employer's appeal to go through for a full hearing, but because, on at least some possible effective dates of termination in this case the Originating Application would have been outside the prima facie time limit if the only Originating Application which was presented was the one presented in March, the Employment Appeal Tribunal directed the Tribunal to decide whether Mr Gill did indeed present an earlier Originating Application in January 2002.
12. The Tribunal, of course, did as asked, held a further hearing and concluded by their second decision that they accepted Mr Gill's evidence as to what he had done on 30 January 2002, i.e. that he had put an Originating Application through the communal letter box at 5.45 p.m. on that date. They then considered whether that amounted to presentation, there being no evidence that the Originating Application ever found its way from the communal letter box to the Tribunal offices proper. They concluded that Mr Gill could not at the time have gained access to the Tribunal offices, that at 5.45 p.m. he could have done no more than he did, and that what he did amounted to presentation. The employers then appealed the second Tribunal decision. Again they were permitted by interlocutory order, to proceed to a full hearing, to be heard together with their first appeal.
13. We have today heard both appeals together, the employers being represented by Miss Grennan and the employee being represented by Ms Stroud, instructed by the Free Representation Unit. We are grateful to both of them for their frank, succinct and able submissions, and in particular to Ms Stroud for taking on Mr Gill's representation.
14. We should also say, before turning to the issues which we have to decide, that there is no longer any issue arising under Mr Gill's breach of contract claim. We are told that, at the outset of the first Tribunal hearing, it was accepted by the employers that Mr Gill was entitled to two month's rather than one month's notice and that therefore he was entitled to a further month's pay. Thus the Tribunal did not decide and we do not need to decide any question which might have arisen under the breach of contract claim. All that we say hereafter relates to the unfair dismissal claim.

The Change in the Effective Date of Termination

15. It is obviously logical to address the first appeal first. The first issue which we have to decide is whether the Tribunal were correct in reaching the decision that they did, that the effective date of termination was 31 December 2001, despite the actions of the parties between the provision by Mr Gill of his notice on 23 September and 12 November when, at the latest, on the employer's case the contract terminated.
16. In paragraph 11 of their first decision the Tribunal referred to section 97 of the Employment Rights Act 1996 and set out the definition therein of the effective date of termination where the contract of employment is terminated by notice, i.e. the date on which the notice expires.
17. As paragraph 12 of that decision demonstrates, the Tribunal concluded that the statutory definition of the effective date of termination in section 97 (1) (a) of the Act could not be overridden by any agreement between the parties. They went on to conclude that there was no agreement between the parties but that that did not matter, the words of the statute were clear and it was not within the power of the parties to rewrite them implicitly by agreement or by unilateral action.
18. In expressing those views of the law, the Tribunal were, in our judgment, mistaken. It is well-established that the parties to a contract of employment may by agreement vary a period of notice to terminate the contract of employment which one of them has given to the other. In Mowlem Northern v Watson [1990] IRLR 500 the Employment Appeal Tribunal held that the parties could vary a period of notice by postponing its expiry date by mutual agreement. They appear to have regarded it as equally open to the parties to vary a period of notice by shortening it by agreement.
19. That is not surprising. Let us imagine that an employee during a period of notice finds another job and wants to leave earlier so that he can take up that other job. It would be only common sense that he and the employers could agree that the date of the termination of his contract of employment should be brought forward. Conversely, if an employee under notice for whatever reason and from whichever side finds a new job to start, let us say, one month after the expiry of his notice, and persuades the employers, because he cannot afford to be without pay for a month, to extend his notice for a month so that he is paid for that month, the effective date of termination can be varied by agreement so that it takes place one month later than originally specified in the notice.
20. In a case which an employee purports to give a very long notice period, much longer than that required by the contract or by statute, it might make common sense for the employer and the employee to negotiate an earlier departure. An employer in that situation might not wish to continue with a disenchanted employee who wants to leave, and if the two parties agree that the employee should go earlier the law would not or should not (and in our view does not) stand in their way. The effect of any such agreement would not be to infringe the provisions of section 97 (1) (a). The effective date of termination would still be the date of expiry of the notice. The parties would have agreed to change the date on which the notice expired. Alternatively, it could be argued that there would not have been a termination other than a consensual termination and that therefore section 97 would not apply at all. It matters not which. But in Lambeth v Croydon College [1999] IRLR 346 the Employment Appeal Tribunal, presided over by His Honour Judge Clark, held that there was no reason why the effective date of termination for the purposes of section 97 should not be a date agreed between the parties and we respectfully agree.
21. The Tribunal relied for their view that, once Mr Gill gave notice, nothing could alter, in terms of the effective date of termination, the date which he specified in his notice, on Lees v Arthur Greaves (Lees) Ltd [1974] ICR 501 and Staffordshire County Council v The Secretary of State for Employment [1999] ICR 664. It is not necessary for us to go into those cases because Ms Stroud has fairly conceded that there is nothing in them which supports the proposition for which the Tribunal apparently regarded them as authority. Indeed, Ms Stroud has, with even greater candour, accepted that there is no authority that she can find, in text book or elsewhere, for the Tribunal's conclusions as to what the law in this area was.
22. However, to a degree, all that is beside the point because the Tribunal held that there was no agreement and that Mr Gill ceased to work on 12 October because he was required so to do by the employers who told him to work up to that date but not thereafter.
23. The Tribunal appear to have concluded that that conduct by the employer can not have affected the currency of and continuation until expiry of the notice given by Mr Gill. The Tribunal does not appear expressly to have considered the employer's case that they had themselves given Mr Gill notice which would terminate the employment either on 12 October or on 12 November 2001.
24. In our judgment, just as in law it is open to the parties by agreement to postpone or bring forward a date for the termination of a contract of employment which has been specified in a notice given by one side or the other, so it is open to one of the parties during the course of the notice by a shorter notice, or by a summary dismissal without notice, to terminate the contract at an earlier date and thus bring forward the effective date of termination of the contract of employment.
25. In Stapp v Shaftesbury Society [1982] IRLR 326 the employee was given one month's notice by the employer which would have produced an effective date of termination such as to give the employee sufficient service to claim unfair dismissal. Two weeks later the employers summarily dismissed him, paying him to the original effective date of termination and giving him his P45. The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal all held that the summary dismissal had determined the contract of employment forthwith. The wording of the notice was such as to tell the employee that his duties were then and there at an end. Thus an employer can summarily dismiss in the course of his own notice. There can be no reason in law why he cannot do the same in the course of the employee's notice or why he cannot, during the course of an employee's longer notice, by a notice to determine the employment at an earlier date, bring the contract of employment to an end at a date earlier than that specified in the previous employee's notice.
26. Let us imagine that an employee who has been given notice or who has given notice to terminate the employment at some time in the future, is caught red-handed stealing the company's crucial and confidential software two days after the original notice has been given; and he does not deny that what is what he has done. The employers would not, by reason of the employee's notice, be prevented from summarily dismissing him for misconduct there and then, subject of course to proper disciplinary procedures and matters of that sort. When thus dismissed, the employee's effective date of termination would be the date on which he was summarily dismissed.
27. If in the same circumstances the employers decided not to dismiss summarily but to dismiss on one week or two week's notice, or some other notice shorter than that given by the employee, such a giving of notice would, in our judgment, effectively bring the effective date of termination forward to the date of the expiry of that second notice, although at a date earlier than that intended by the employee's earlier notice.
28. In Thompson v GEC Avionics [1991] IRLR 488 the facts were the reverse. The employers gave Mrs Thompson a notice of dismissal in just under three month's time for redundancy. She served a counter-notice terminating her employment at an intermediate date. It was relevant to the application of the statutory time limit to consider whether her contract of employment terminated at the date in the original notice or at the date in her counter-notice. The Employment Appeal Tribunal, chaired by Wood J, found that the contract of employment terminated at the date specified in the counter-notice.
29. For these reasons we have no doubt that the Tribunal, unfortunately, erred in the basis upon which they concluded that the date of dismissal here was 31 December 2001. The employers' letter of 1 October (the Tribunal having found that there was no agreement) was a letter which brought the employment to an end at an earlier date.

What was the Effective Date of Termination?

30. The second issue is the date on which the contract of employment in this case did terminate in the light of the steps taken by the employers. Plainly it was not 31 December for the reasons we have just set out. The choices are agreed as either 12 October or 12 November. The Tribunal has at no stage made a decision between those two alternatives. The decision depends upon a construction, in the light of the facts found by the Tribunal, of the employer's letter of 1 October.
31. Both Miss Grennan and Ms Stroud have asked us to determine that issue. It may be an issue of fact; but no further evidence is required and, particularly since there has already been one direction to the Tribunal to have a further hearing on this time limit issue, it would be extremely unfortunate, in our view, if there now had to be a remission for the Tribunal to hold a third hearing and decide whether the effective date of termination was 12 October or 12 November. In the circumstances we are prepared to make that decision ourselves.
32. The choice is a vital one. If the first Originating Application was not properly presented to the Tribunal and only the later one of 8 March was properly presented, then the only operative Originating Application would have been presented out of time, whether 12 October or 12 November was the effective date of termination. If, however, the first Originating Application was presented on 30 January 2002 it was presented less than three months after 12 November, so that it would have fallen within the primary time limit, but more than three months after 12 October, in which event it would have been outside the primary time limit and Mr Gill's claim would fail for being out of time, unless the Tribunal at a yet further hearing were to decide that it had not been reasonably practicable for him to present his Originating Application within the three month limit and were to exercise their discretion to extend the time in his favour.
33. The Tribunal found that the reference to one month in the letter of 1 October arose because Mr Foan, the managing Director, had mistakenly believed that one month's notice was what was required under the contract of employment. The letter of 1 October was written on that basis. Did that letter terminate the contract of employment on 12 October with a payment in lieu of one month's period of notice, or did it give Mr Gill one month's notice from 12 October to terminate the contract of employment on 12 November? We, for present purposes, for reasons which will become clear in a moment, put on one side the use of the expression 'payment in lieu', which is a term used in custom, rather than a term of strict legal analysis.
34. In Lee v Ariston (Unreported, EAT/51/89) the Employment Appeal Tribunal, presided over by Wood J, had to deal with a similar issue in respect of a dismissal letter. At page 2B to 3C of the judgment the EAT said:

"It is clear that if the employment is brought to an end immediately but salaries and monies are paid in respect of the subsequent period they are to be taken as compensation for the loss of immediate dismissal. If a notice is given terminating employment at the end of the period the mere fact that a person is told that he would not be required to work during that period of notice does not mean that the employment terminates other than on the date which by the notice is expressed to be the notice of termination. It may very well be that during the continuing period when he is not required to work he will nevertheless be paid wages. The Tribunal in the present case looked at this letter. They were divided in their view. The minority member thought that the phrase was ambiguous, the majority thought that the phrasing was clear and that it constituted an immediate termination."

35. In that case the Employment Appeal Tribunal considered a series of previous decisions of the Employment Appeal Tribunal; from them and from this four principles emerge. We can state those four principles briefly and without going into the authorities in detail because Miss Grennan and Ms Stroud are agreed as to them. They are: -

(1) that the question which arises is one which falls to be decided upon the proper construction of the relevant letter;

(2) if the letter is ambiguous it is to be construed in favour of the employee, applying the contra proferentem rule;

(3) the construction put on such a letter should not be a technical one but should reflect what an ordinary or reasonable employee in the employee's position would understand and should be construed in the light of the facts known to that employee at the relevant time; and

(4) the use of terms such as 'payment in lieu' is not determinative either way.

36. It is, in the light of those agreed principles, not necessary for us to go further into the authorities; we hope that we can be forgiven for going straight to our conclusion, applying those principles.
37. Our conclusion is that the letter of 1 October is ambiguous. Miss Grennan makes the point that the background facts, as found by the Tribunal, were that in a discussion on 25 September (or thereabouts) the employers had said that Mr Gill should work for a further two and a half weeks on the Helpdesk and that his employment would then terminate with a further payment of one month's pay in lieu of notice. It has to be said, however, that in finding those facts the Tribunal were not directing their mind to the distinction between termination on 12 October and 12 November which, to them, was an irrelevant distinction because they were convinced, erroneously as we have pointed out, that the only date which they needed to consider was 31 December.
38. The letter itself refers at the beginning of the directly relevant paragraph, to "the standard one month's notice". It goes on to say that one month's salary in lieu of notice will be paid. It does not expressly give a date for termination; but it does expressly refer to one month's notice.
39. We have been reminded that at various points thereafter, for instance in their Notice of Appearance, the employers have expressly stated that the termination date was 12 November, but we regard it as unnecessary and perhaps erroneous, to look at what happened after the event, we have concentrated our attention, as we think we should, on the letter itself.
40. Against the background facts we are unable to say that it is clear that that letter was informing Mr Gill, or would have informed a reasonable employee in the circumstances, that his contract of employment was to terminate on 12 October as opposed to 12 November; after the expiry of the one month's notice.
41. Therefore, applying the principles which we have set out and which are agreed, the conclusion which we reach is that the effective date of termination in this case was 12 November 2001. If that is correct (and that is our conclusion) then if the first Originating Application was presented, as the Tribunal found it was, on 30 January, Mr Gill's claim was presented in time; and it is therefore to the issue of presentation that we must turn next.

Presentation

42. The Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001, which were in force at the date of these decisions of the Tribunal (and in any event are not for present purposes different, or materially different, from their predecessors) provide by Schedule 1, Rule 1 that:

1 (1) "Where proceedings are brought by an applicant, they shall be instituted by the applicant presenting to the Secretary an originating application..."

The Secretary means the person for the time being appointed to act as the Secretary of the Office of Tribunals, but that, of course, includes anybody who is authorised to deal with applications on behalf of the Tribunal.

43. The Rules do not define presentation. For that it is necessary to look at the authorities. They start with the decision of the National Industrial Relations Court ("NIRC") in Hammond v Haigh Castle & Co. Ltd [1973] ICR 148. In that case, at a time when the prima facie time limit was four weeks from dismissal, the employee's professional association sent his Originating Application by post to the Tribunal. It arrived less than one month but more than four weeks after the effective date of termination. The NIRC rejected the employee's appeal from the dismissal by the Employment Tribunal of his unfair dismissal complaint. Much of the judgment is concerned with the meaning and application of the exception to the prima facie time limit, then in different terms from those which now apply; but at page 151 the court gave some guidance as to the meaning of presentation, in these terms:

"Although it is immaterial to the present appeal we have been asked to express our opinion on the meaning of the word 'presented'. In our judgment a claim is presented to a Tribunal when it is received by the Tribunal, whether or not it is dealt with immediately upon receipt. Thus a claim delivered to the Tribunal office by post on a Saturday is presented on that day, even if not registered before the following Monday."

It is clear from those words that the NIRC was indicating that what happens to an Originating Application after it is delivered to the Tribunal is not material. Presentation involves receipt or delivery but no more.

44. In Swainston v Hetton Victory Club Ltd [1983] 1 AER 1179 the employee was dismissed on 7 September 1981. The prima facie time limit, by now three months, expired at midnight on 6 December of that year. There were three other government departments in the building where the Manchester Regional Office of the Tribunal was situated. On the ground floor was a door which was closed over the weekend; and in the door was a letterbox, through which communications could physically be posted. They would be cleared by a security officer when the offices re-opened and, supposedly, delivered to the appropriate intended recipient. Thus there was a communal letterbox receiving letters for all occupants, including the Employment Tribunal. The Originating Application was not presented until the Monday morning of 7 December 1981; and the question arose as to whether it could have been delivered and effectively presented on the previous day.
45. The Employment Appeal Tribunal allowed the employer's appeal against the Tribunal's decision that the Originating Application was presented in time and the Court of Appeal upheld the Employment Appeal Tribunal's decision. The Employment Appeal Tribunal, presided over by Browne-Wilkinson J, after setting out the facts, said:

"As it seems to us, presentation is primarily a unilateral act to be carried out by the person who is presenting. However, it does require some form of collaboration by the person to whom the presentation is being made and that presentation cannot be completed unless it is either actually received by the person to whom presentation was made, or has been placed or communicated through a channel which the person to whom the presentation is to be made has indicated as an acceptable means of communication and receipt…As it seems to us if business is being carried on in a building which when closed has a door to which the public have access and that door contains a letter box held out as a means of communication, a document put through that letter box is in any ordinary sense presented to the person carrying on that business when it is put through the letterbox. We do not wish this case to turn on the exact details of the internal arrangements made in this particular regional office. As it seems to us, an application is presented if it is placed through a letterbox or dealt within some other way held out by the regional office as a means whereby it will receive communications."

46. It is immediately apparent from the facts of Swainston, and from that extract from the judgment of the Employment Appeal Tribunal, that the facts of Swainston were very close indeed to the facts as found by the Tribunal in this case. That passage of the EAT's judgment was upheld and approved by the Court of Appeal. We need not refer to specific passages in the judgment in the Court of Appeal.
47. Miss Grennan, frankly recognising that Swainston puts her in difficulties on this issue, nonetheless with ingenuity (and admirable ingenuity) submits that there are differences between that case and this case; for example in this case the regional office's letter heading, we are told, actually says "second floor", whereas that was not the case in the case of the Regional Office in Manchester to which Mr Swainston's Originating Application was delivered.
48. She submits further that in this case there is no evidence that the regional office had indicated that posting in the letterbox was an acceptable means of communication. She says that a question of presentation is not a question of fact, it is a question of the definition of presentation in relation to the facts and thus a question of law.
49. We must bear in mind the words of the Employment Appeal Tribunal in Swainston, with which we would agree even if the decision had not been upheld by the Court of Appeal, that that case, and surely any case, should not turn, if it is avoidable, on the exact details of the internal arrangements made in the particular Tribunal office. We do not regard the difference in the letter heading as a distinction which amounts to any substantial difference.
50. There appears to us to be no difference in the facts in terms of the extent to which the letterbox was held out as being a means whereby the Regional Office will receive communications between the Swainston case and this case. The letterbox was there. It was obviously a means by which communications could be received, not just on Saturdays and Sundays but, if the postman came before the office was open, as postmen in some places still do, by the postmen putting the daily post into the letterbox. No other letterbox is said to have been available, and the fact that the letterbox did not have the Tribunal's name on it appears to us to be irrelevant. It might have been different if there had been something on it saying 'do not post documents for the Employment Tribunal' or the like. Then plainly there would not have been any holding out of the letterbox as a means whereby the Tribunal would receive communications. But on the facts of this case, we have no doubt that the Tribunal were right to decide that there had been presentation. They referred to the fact that there was nothing else that Mr Gill could have done; that is probably an irrelevancy for present purposes (although it might be relevant to questions of reasonable practicability); but we need not look at those matters because they do not in any way detract from what, in our judgment, is the plain result of any question as to whether there was a presentation in this case, having regard to the principles as set out, in particular in Swainston, and whether it is a question of fact or whether it is a question of law.
51. In our judgment the Tribunal here came to the right result on their findings of fact. This Originating Application, in our judgment, was presented within the Rules.

Conclusions

52. It follows, from all our conclusions, that although the employers have succeeded in bringing forward the date on which the contract of employment have ended, nonetheless the Originating Application which Mr Gill put in the letterbox on 30 January 2002 (as the Tribunal found he did) was sufficient to commence his unfair dismissal claim in time.
53. For the reasons we have set out, the first appeal is allowed to the extent that there is substituted for the Tribunal's decision of 9 July 2002, the decision that the date of termination of the contract of employment was 12 November 2001. The second appeal is dismissed. The claim will now have to go back to the Tribunal for a hearing on the merits.
54. We were asked by Miss Grennan if we had come to a conclusion which had required a remission of the time limit point, to remit to a different Tribunal. Ms Stroud had no instructions one way or the other on that point. Since we are not remitting it is not for us to state whether it should be a new Tribunal or the same Tribunal which hears the claim on the merits; but having regard to the history we would simply comment that the Regional Chairman or whoever has to make the decision as to who should hear this claim on the merit might think it was wiser that there should be a fresh Tribunal.