Appeal No.	 EAT/925/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 February 1997

Before
THE HONOURABLE MR JUSTICE KEENE
MS S R CORBY
MR R H PHIPPS

HELLMICH (UK) LTD	APPELLANTS

MR R EDWARDS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MRS J BISSELL & 
MR S J BISSELL
(Directors)	

	MR JUSTICE KEENE:   This is a preliminary hearing to decide whether there is an arguable point of law in this appeal which justifies the matter being allowed to proceed further. 

	It is an appeal which is brought by a small company which had employed the respondent in this case. The respondent had been employed by the appellant company as an extrusion engineer. The company recycled plastic and manufactured lighting boards for trailers. 

	The respondent had undoubtedly been dismissed on 28th December 1995, but there was a conflict between the parties as to the reason for his dismissal. When the matter came before the Industrial Tribunal, the present respondent appeared on his own behalf. The company, now the appellant, did not appear and was not represented, but it had lodged an IT3 and had supplied certain witness statements. The only witness, however, whom the Industrial Tribunal heard at that hearing was the present respondent who was at that stage the applicant. He explained the background to the matter to the tribunal, and his version of the events surrounding his dismissal was that he had seen one of the directors, Mr Bissell on 28th December and had been told by him that the company was not going continue with the extrusion aspect of the business because it was not profitable. It no longer required his services and he was thereby dismissed.

	The documentation sent in by the company presented a completely different version of events. On the basis of that documentation, Mr Edwards had been dismissed for gross misconduct; in particular it was said that he had sworn at Mrs Bissell and that this had been taken to a considerable degree. 

	The tribunal in its decision at paragraph 5 said it was satisfied that the applicant had been dismissed, and it gave the effective date of termination as 28th December 1995. It then went on to say:

“... We preferred the evidence given by Mr Edwards on oath to the written statements that were lodged with the tribunal. The applicant, it appeared to us, was not dismissed for gross misconduct and was entitled to one week’s notice which he had not received.”

They thereby awarded a total of £241.42 which was his net pay together with an amount which allowed for the loss of the use of a company vehicle during that time.

	The present appellant was dissatisfied with that and it sought a review. But before coming to the decision of the Industrial Tribunal on the application for a review, we have to say that the basic position at the hearing was that on the documents there was a clear conflict of fact as to whether the employee had been dismissed for gross misconduct or not. That conflict must have been evident to the company because the then applicant, Mr Edwards, made it clear in his originating application - IT1 - that he had been dismissed simply because the company did not wish to continue with the extrusion aspect. The company had written before the hearing by means of a letter dated 10th June 1996 saying that it would not attend because of the workload which it had as a small company. 

	The position clearly was that the company chose not to attend the hearing, but to rely upon its written representations and on statements by witnesses. We have heard today from Mr and Mrs Bissell, who are directors of this small company, who have said that they understood that if they wrote in those sort of terms and the documentation was persuasive enough, then that could win them the day. 

	The employee, Mr Edwards, as we have indicated did attend. He denied that he was dismissed for gross misconduct and was believed.

	After the tribunal’s decision, which was unanimous, the appellant sought a review on the basis that its side of the case had not been heard. It applied for review by the tribunal on 8th July 1996. On 17th September 1996 Mr and Mrs Bissell actually attended a hearing in support of their application for a review. However, in its decision on 9th October 1996, the Industrial Tribunal refused a review pointing out that at no stage had the company sought an adjournment of the original hearing. The tribunal concluded:

“4	To Review a decision the tribunal has power to do so on the grounds the decision was made in the absence of a party. That comes under Rule 11(c) of the Industrial Tribunal Regulations. The respondents must show good cause for their absence. In this case the tribunal is quite satisfied that the respondents had every opportunity to present their case before the original tribunal on 20 June and chose not to do so and we therefore dismiss this application.”

	Today before us, Mr and Mrs Bissell have referred to Rule 11(c) of the Regulations and have said that there was good cause for their absence. They have pointed out that one of their directors had been ill and out of action for several weeks; they were a small business, and for them to have attended would have meant closing their business for the day which would have meant a considerable financial loss to them. They also stress that they had been under the impression that their case could be adequately presented to the tribunal by means of their written representations. 

	It is acknowledged by them that they could have asked for an adjournment of the original Industrial Tribunal hearing, but they have said to us that they were not really aware that that was a possibility and they had taken no legal advice.

	We have to decide whether the Industrial Tribunal has gone wrong in law either in its original decision or in its decision to refuse the appellants’ review of its decision, on the basis that no good cause had been shown. 

	We are bound to say that we can see nothing wrong in law in the decision originally made by the tribunal, or in its refusal of a review. We do have some sympathy with Mr and Mrs Bissell, who were working on the basis that they could present their case sufficiently in writing, but any party which does that inevitably runs the risk that the Industrial Tribunal will prefer the evidence of the party who turns up and gives evidence orally in front of them. It may be that this company had not appreciated that, though it is something which could have been explained to them by any solicitor, had they taken any legal advice. We cannot see that there was anything wrong as a matter of law in the conclusions reached at the original hearing.

	So far as the application for a review is concerned, it is true that the appellant did not attend the original hearing and that therefore the decision was made in the absence of the appellant. On the other hand this is not a case where good cause in the sense meant under that Rule was shown by the present appellant for its absence. The fact was, as the tribunal concluded, that they chose not to attend the original hearing because of the problems it created. They chose to rely upon their written representations. This is not a case of the kind where, for example, at the last minute something had occurred which unavoidably prevents a party from attending the tribunal hearing. 

	Whether or not we would have reached the same conclusions that the Industrial Tribunal reached, either on its original hearing or on its review, is not the relevant question. We do not sit here as a tribunal of fact, but only as a tribunal to deal with errors of law that have been made by the tribunal below. Sympathetic as we may be, we can find no error of law in either of the decisions which the Industrial Tribunal below has made, and therefore we have to rule that this appeal must be dismissed.