Appeal No. EAT/357/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 October 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MRS T A MARSLAND
MR J A SCOULLER

MR R F JEAPES	APPELLANT

MESSRS REDFERNS
	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON	
For the Respondents	MR P GARNER
(Representative)	

			MRS JUSTICE SMITH:   This is an appeal against the refusal of an application for the review of a decision made by an Industrial Tribunal sitting at Ashford on 5 January 1996.  On that day in the Appellant’s absence, the Industrial Tribunal dismissed the Appellant’s application for wages in lieu of notice following his dismissal, and also a claim for unpaid wages under the Wages Act 1986. 

	The Appellant had worked as a driver for the Respondents for about six months, when he was dismissed for allegedly altering invoices contrary to company rules, an allegation which he denied.  In his absence, the Industrial Tribunal heard evidence from the employers which they accepted.  They concluded that the Respondents had been entitled to dismiss the Appellant, summarily, for gross misconduct.  Thus wages in lieu of notice were not payable.  That part of the claim failed for that reason.  

	Second, they heard evidence from the Respondent’s witness, Mr Garner, that he had paid the Appellant all the wages which were due to him, although he had no document to prove it.  The Tribunal recorded that Mr Garner had neglected to ask the Appellant for a signed receipt .  

	The majority accepted the Respondent’s evidence that the money had been paid.  The minority member did not.  The claim was dismissed.  The decision recounted that Mr Garner had said that he had paid the wages to the Appellant on or about 29 September 1995, when, as he said, the Appellant had visited the Respondent’s premises.  The Appellant was, being absent, unaware that that evidence had been given.  As soon as he saw it he applied for a review.  One of the points that he made in his letter asking for a review, was that he wished to tell the Industrial Tribunal that he did not visit the Respondent’s premises on or about 29 September, and could not have done so, because he was on holiday in Skegness.

	The application for a review was put before the Chairman, who refused it.  In refusing, the Chairman gave as his reasons that the application for the review had no reasonable prospect of success; the letter continues: 

“... Moreover, it does not fall within any of the specified grounds on which a review could be granted.”

	When this matter came before the Employment Appeal Tribunal on a Preliminary Hearing, Mr Jeapes, the Appellant, was represented by Counsel, who drew the attention of the Appeal Tribunal to the fact that the grounds on which a review may be granted, as set out in Rule 11 of Schedule I to the  Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, include as one of the grounds, that “the decision was made in the absence of a party.”  This decision was made in the absence of the Appellant.	

	The reasons why the Appellant did not attend do not appear to us to be important in this appeal.  In the light of the circumstances known to the Tribunal at the time, they could not possibly be criticised for their decision to proceed in the Appellant’s absence.  What matters is whether it can be right to say that the application for a review does not fall within any of the grounds on which a review could be granted.  It plainly does.  Sub-paragraph 1(c) which provides that a review may be granted where the decision was made in the absence of a party, does not say anything about whether the absence was blameworthy or innocent and unavoidable.  In those circumstances it appears to us that, on the face of the Chairman’s refusal, there is an error of law.  

	In those circumstances we feel obliged to send this matter back for the Chairman to reconsider the application for the review.  We draw attention to the fact that in so far as the Wages Act claim was concerned, the Industrial Tribunal were divided as to whether they believed the Respondents’ evidence.  We do not go so far as to say that we regard the Chairman’s decision as perverse when he concluded that there was no prospect of success in a review.  However, we would express the opinion that where credibility is in doubt and where only one party has been heard, it will be an unusual case where a Chairman can properly say that a review could have no possible prospect of success.  

	For those reasons therefore, we remit this matter to the Chairman at Ashford with a direction that he reconsider the Applicant’s application for a review in the light of this decision.