Appeal No.	EAT/1192/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR J D DALY
MR T C THOMAS CBE

MR F OJOBARO	APPELLANT

LONDON BOROUGH OF HACKNEY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR N NICOL
(of Counsel)
Messrs Lomax-Jones
Solicitors
204 Old Kent Road
London
SE1 5TY	

	JUDGE PETER CLARK:     This is an appeal by Mr Ojobaro, the Applicant before the Stratford Industrial Tribunal sitting on 27 June 1997, against that Tribunal’s decision to dismiss his complaint of unfair dismissal and for pay in lieu of notice.  The Tribunal’s Decision with Extended Reasons was promulgated on 21 August 1997.

	The background to the dismissal was this.  The Appellant commenced employment with the Respondent, the London Borough of Hackney, in December 1991.  He was dismissed by letter dated 25 July 1996 in the following circumstances.  On 20 May 1996 he went on leave and was due to return to work on 1 July.  He did not return on that date, without explanation to the Respondent, and thereafter his absence was unauthorised.  Hackney operated a procedure, agreed with the trade unions and known to the staff, including the Appellant, dealing with unauthorised absence.  It provided for a letter to be sent out to the absent employee by management by Recorded Delivery after six days absence, followed by a further letter, again by Recorded Delivery six days later, in which the employee is told to contact the Respondent within three days of receipt of the letter, failing which he would be dismissed by letter, without a hearing and without a right of appeal.

	It was the Appellant’s case that he had gone on holiday to Nigeria on 20 May and had been taken ill on 27 June.  He was in hospital in Lagos and asked a friend to telephone the Respondent.  The friend failed to make contact.  The Appellant said that he then sent a medical certificate by Federal Express to the Respondent.  That courier service failed to deliver the package.  Subsequently the Appellant sent a further package containing a medical certificate which the Respondent accepted it received on 26 July.

	The Respondent’s case was that letters, in accordance with the procedure, were sent to the Appellant’s home on 11 and 18 July.  No reply was received, and by letter dated 25 July the Appellant was dismissed.

	The Appellant gave evidence that he finally returned to England on 3 September, having undergone medical treatment in Nigeria until 22 August.  He then found the Respondent’s various letters and in particular the letter dated 18 July, requiring him to respond within three days of receipt of that letter.  The letter was post-marked 22 July by a franking process at the Respondents and a copy of the envelope was in evidence before the Industrial Tribunal.

	The Tribunal found that the Respondent’s procedure in relation to unauthorised absence was reasonable; that Mr Nzekwue, who had written the dismissal letter dated 25 July, genuinely believed that the letter of 18 July had been sent on that date, although the Tribunal accepted that the letter may have been posted subsequently, but that any delay in receiving the letter dated 18 July made no difference because the Appellant was not at home to receive it.  Receipt of the Appellant’s medical certificate on 26 July did not provide cause to alter the dismissal decision.  The Appellant had been absent from work for 25 days without explanation and the dismissal was fair.

	In support of the appeal Mr Nicol points out that under the Respondent’s procedure the letter before dismissal was to be sent by Recorded Delivery.  It was not, and accordingly there was no record on the Appellant’s file telling Mr Nzekwue that the letter had not been posted until 22 July.  Although he genuinely believed, himself, that the letter had been posted on 18 July it was not.  That fault, submits Mr Nicol, plainly lies with the Respondent.

	Had Mr Nzekwue realised that the letter had not been posted on 18 July, but on 22 July, the three day period would not begin to run until receipt, even constructive receipt, by the Appellant on 23 July at the earliest.  Precisely three days later the Respondent received the Appellant’s medical certificate from Nigeria.  The significance of that sequence of events, apparently overlooked by the Tribunal in their Reasons, would have been to terminate the automatic dismissal under the unauthorised absence procedure, and render the Appellant liable to the ordinary disciplinary procedure, involving both an initial disciplinary hearing and, if necessary, a subsequent right of appeal at which the Appellant would have an opportunity to put his case.  As it was, he was never given that opportunity as a result of the flawed application of the unauthorised absence procedure by the Respondent.

	In our view the circumstance of this case give rise to an arguable point of law as we have related it, which ought to be considered at a full appeal hearing.

	Accordingly we shall allow the matter to proceed to a full hearing and direct that it be listed in due course for half a day; Category C.  Skeleton Arguments to be exchanged between the parties not less than 14 days before the date fixed for the full appeal hearing.  Copies of those Skeleton Arguments to be lodged with this Tribunal at the same time.  No further directions are necessary and in particular there is no requirement for the Chairman’s Notes of Evidence.