Appeal No. EAT/1423/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 June 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR B V FITZGERALD MBE
MR D A C LAMBERT

MR P ODUNLAMI	APPELLANT

ARCADE CARPARKS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT	

JUSTICE LINDSAY (PRESIDENT)

1	We have before us a Preliminary Hearing in the appeal of Mr P Odunlami in Odunlami v Arcade Carparks.  It is now 4.37 in the afternoon; the case was listed to come on at 10.30 and no-one has appeared for Mr Odunlami and no-one has appeared at all in relation to the case.

2	The only question the matter gives rise to is when was it precisely that Mr Odunlami was dismissed. It is necessary to know that for the purposes of the three-month time bar.  The Employment Tribunal was satisfied that he was dismissed on 9 June 2000.  His IT1 therefore should have been presented by the end of 8 September 2000.  It was not in fact presented until 26 September and therefore it was prima facie out of time.

3	No argument as to its being not reasonably practicable for him to have presented an IT1 within the prescribed period of 3 months was made out below, so it all depends on the correctness or not, in law, of the firm conclusion of the Employment Tribunal that the dismissal, which was summary and without notice, was on 9 June 2000.

4	As to that, we have not got very full information, as will transpire.  First of all, Arcade Carparks seems merely to be a trading name.  The company behind it was, or would seem to be Arcade Traffic Management Ltd.  That company seems to have a disciplinary code.  It seems to suggest – and we are going to say “seems” because we have not got the whole of it but merely an extract – that dismissal is a matter always for a director or the Managing Director.

5	Mr Odunlami says that it was a Mr Mark Peache who purported to dismiss him.  We do not actually have the letter of dismissal.  We do not know whether Mr Odunlami was dismissed by, or upon the authority of, a director of the company.  We do not know, if he was not, whether a point was taken below as to the authority or vires of the purported dismissing officer.

6	Mr Peache describes himself as Operations Manager and certainly does not indicate that he is a director of the company.  It could be that there was an error of law as to the propriety of the dismissal, as at 9 June, by Mr Peache.  That is one point.

7	A second point is this.  The conclusion of the Tribunal at London (Central) under the chairmanship of Mr C A Carstairs was:

5	“The Applicant did not receive any pay after 26 May 2000.”

Mr Odunlami shows to us (he has sent it ahead of today) a pay slip that seems to indicate a payment to him on 26 June 2000.  That is the second point.

8	The third point is that he appealed against his dismissal.  Appeals under the company’s code, were it seems, complete re-hearings.  I mentioned before that we do not have the whole of the disciplinary code.

9	The Managing Director of the company wrote on 4 July 2000 to Mr Odunlami.  He said in the beginning of his letter:

“On hearing your appeal and after reflecting on all the relevant facts, I write to inform you that the decision taken at the disciplinary hearing to dismiss you is upheld.”

At the end of the letter he says:

“My decision to dismiss you is final.”

10	If there truly was a decision to dismiss only on 4 July – and this very much depends on a survey of the disciplinary process and sort of questions about vires that we have touched on – but if there was truly was a decision to dismiss only on 4 July then, of course, the IT1 of 26 September was in time.

11	Because of Mr Odunlami’s absence we think there is just enough, giving him, in his absence, the benefit of the balance of any doubt, to let the matter go forward to a full hearing.

12	The company, which as I said, appears to be Arcade Traffic Management Ltd, is to produce its full disciplinary code, secondly, the identity of its Directors and Managing Director as at 9 June 2000, thirdly, a copy of the dismissal letter of 6 June 2000 and, fourthly, details of any payments, made as pay or in respect of employment, to Mr Odunlami, at or after 6 June 2000.

13	The Employment Appeal Tribunal is to write to the Chairman of the Employment Tribunal in the matter and ask him if any point was taken below, as it appears to be taken here in Mr Odunlami’s written submissions, on the authority of the purported dismissing officer truly to be able to dismiss.  That is the first point to ask the Chairman.

14	A second is whether the payslip of 26 June 2000, which has been produced to us, was produced to the Employment Tribunal.  It might be that we have not got a very good photocopy – it might be 25 June – but at any rate a date in June.  It looks as if references to 26 June 2000 should be 25 June 2000.  We will ask the Chairman whether the payslip of 25 June, which was produced to us, was produced to the Employment Tribunal and a copy of it will need to be sent to the Employment Tribunal.

15	We do not ask for the Chairman’s notes of evidence at this stage, but if, upon having to look back into the matter in the rather limited way that we have mentioned, the Chairman finds that, without inconvenience, he can go on and that it would be helpful for us to have the full notes of the hearing and evidence, well, then, of course, it would be welcomed that he should elect to go beyond the questions which we have expressly asked him to deal with.

16	The full hearing is not to go beyond the three areas which we have described as arguable; namely the authority of the dismissing officer; the possibility of material error as to the last date of payments, and the correct date of dismissal, given the disciplinary code and the Managing Director’s letter of 4 July.

17	But, allowing those matters to go forward, we direct that the matter should be in Category C, that it should take no more than 1 hour, and that skeleton arguments should be exchanged not later than 14 days before the date fixed for the hearing.