Appeal No. EAT/247/92
	EAT/523/92
	I N T E R N A L 

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27 April 1993

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MISS C HOLROYD

	MRS T MARSLAND

COTTAGE BAKERY 	APPELLANTS

MR A R FEAR	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellants	MR I JENKINS
	(REPRESENTATIVE)

	

	JUDGE PEPPITT QC:  There are two Preliminary Hearings of appeals before us.  The first by Cottage Bakery who appeal against a decision of the Cardiff Industrial Tribunal made on Monday 27 January 1992.  By that decision the Tribunal held unanimously that the Applicant, Mr A R Fear, had been unfairly dismissed and was entitled to a basic award of £573 and a compensatory award of £2,900.

	The second Preliminary Hearing before us is against the Chairman of the Tribunal's refusal on 15 May 1992 to grant Cottage Bakery a review of that decision.  Cottage Bakery were represented before us by its general manager Mr Jenkins.  The Notice of Appeal against the original decision of the Tribunal sets out a number of grounds in which it is said that the Tribunal misdirected itself.  We have gone through those grounds with some care with Mr Jenkins and we have considered them ourselves outside in our room.  In summary it seems to us entirely clear that the suggested misdirections are no more than allegations that the Tribunal came to a wrong decision on the facts and in particular, preferred the evidence given by Mr Fear to that given by Mr Jenkins and his wife.  That is not a matter which entitles us to interfere.  Mr Jenkins told us, and we accept, that he came to the Tribunal ill-prepared to meet the allegations made against Cottage Bakery, having only met his solicitor Mr Latham on the morning of the hearing.  He also told us that Mr Latham, on Cottage Bakery's behalf, applied for an adjournment of the hearing some five or six days before and that application was refused.

	We have to say that there was ample time for Cottage Bakery to have got its house in order to meet Mr Fear's allegations; first as a result of the information contained in the Originating Summons and secondly in the five or six days between Mr Latham's application for an adjournment and the hearing before the Tribunal.  Why no steps were taken we are not able to say, but the fact that Cottage Bakery appeared before the Tribunal unprepared to meet all the allegations made against it is certainly not the fault of the Tribunal and accordingly we cannot help on that ground.

	Mr Jenkins has urged upon us the fact that after Mr Fear's successful application there was a subsequent hearing by a Mr Perry, who gave evidence at the original hearing on Mr Fear's behalf.  Mr Perry also instituted a complaint alleging that he had been unfairly dismissed by Cottage Bakery but for reasons unknown to us he did not appear at the hearing of his application and accordingly having heard the evidence of Cottage Bakery the Tribunal decided against him.  It does not seem to us that that helps Cottage Bakery in the context of Mr Fear's application.  The fact that without any opposition the evidence of Cottage Bakery was accepted in a subsequent hearing does not in any way undermine the Tribunal's conclusions in the Fear Application.  

	Accordingly it seems to us that the appeal against the original decision of the Tribunal must be dismissed.

	The Cottage Bakery also, as we have indicated, appeal against the Chairman's refusal to review that decision in the light of what Mr Jenkins told us was fresh evidence.  The `fresh' evidence is the evidence of a Mr Beck who was not called at the hearing.  In fact Mr Jenkins had discussed the matter with Mr Beck prior to the hearing and had taken a statement from him, but had not realised the importance of his contribution or the extent to which he was able to help.  So, it is said, it was not until after the hearing that the full import of what Mr Beck would be able to say had been appreciated.  We fear that that sort of situation falls far short of the situation in which fresh evidence can be admitted at this stage.  Such evidence can only be admitted if the relevant witness was unavailable at the date of the hearing.  Mr Beck's evidence was known and the fact that its full extent had not been probed is not something upon which Cottage Bakery can rely.  

	We have read the Chairman's Review Decision.  It seems to us that he correctly applied the relevant law to the facts of this case and came to a correct conclusion.  Accordingly that appeal too must be dismissed.