Appeal No. EAT/722/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 March 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MR D GLADWIN CBE

	MR K M YOUNG CBE

MAYALL & CO LIMITED	APPELLANTS

MR R J KING	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR B D MONK
	(MANAGEMENT	CONSULTANT)
	MGB MANAGEMENT
CONSULTANTS LTD
	24 WREKIN ROAD
	SUTTON COLDFIELD
	WEST MIDLANDS
	B73 5SU

For the Respondent	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF THE
RESPONDENT

	JUDGE HARGROVE:  Mr King, the Respondent, has not appeared and we have not had the benefit of any submissions on his part.  The Industrial Tribunal on a preliminary point, held they had jurisdiction to hear this case notwithstanding that the 3 month time limit imposed by section 67 had been exceeded. 

	The Tribunal was satisfied that it was not reasonably practicable for the complaint to be presented before the end of the 3 months.  The date of dismissal put forward by the Respondent was 2 October 1991.  The Originating Application was said to have been posted on 28 December by first class post.  It was postmarked 2 January and appears to have been received by the Tribunal on 3 January.  There had been a previous Preliminary Hearing on 27 May 1992 in order that the Respondent could obtain evidence from the Post Office as to the date stamping of letters in the period 28 December to 2 January.  Putting the matter generally the correspondence that we have read is a vigorous defence by the Post Office that the date stamp could be wrong and indeed it is pointed out that if the account given by Mr King is right, then there must have been 5 occasions when the collection was overlooked before the date stamp was finally implanted.

	The Tribunal accepted Mr King's evidence and they set out their view at paragraph 6.  The Chairman carefully in the preceding 2 paragraphs, goes through the arguments which were placed before him and which have been repeated before us today by Mr Monk.  Paragraph 6 says:

"It really comes down to a matter of whether we believe the applicant or not and we have accordingly looked at each and every letter from the Post Office and considered every submission made by Mr Monk and considered in detail the evidence given by the applicant on oath.  That evidence was given clearly and concisely given and without hesitation and he has withstood careful and thrusting cross-examination.  There is no doubt in our minds that he is telling the truth.  Over very many years we have had to judge who we believe and whose evidence we prefer.  It is not a pleasant task but it is a task that we have to do and we grasp the nettle on very regular occasions.  It is remembered not only have we seen the applicant but we have heard him give his evidence and been able to judge his demeanour and we have weighed up all the evidence both verbal and documentary.  We have come to the unanimous conclusion that we accept the applicant's evidence that this letter was posted by him at pm on the 28 December, and that in the normal course of post one would have expected it to have been received at Central Office on or before the 1 January 1992.  By that finding we also have to accept that this is one of those (albeit very rare) cases where this letter has for some reason not received a date stamp until 2 January even though it was posted on the afternoon of 28 December.  In every organisation small or large accidents and errors occur and this was one of them.

We therefore find as a substantive fact that though this application is out of time, it was not reasonably practicable for the applicant to have presented it within time. 
	The attack upon this decision comes under a number of heads.  First it is said that the steps taken by Mr King were inadequate.  That he could and should have made further enquiries as to whether or not the Tribunal had received the application and it is said also that that duty is placed upon an applicant by the manner in which various cases have described the state of mind an applicant should be in.

	There is nothing in that point.  Doubtless had it been urged upon the Tribunal that in fact there should have been an application by facsimile or by further enquiries at the office, doubtless they would have considered those matters.  The fact that there is no consideration of them leads one to believe either they were not put or that they were put and rejected.  Secondly, it is said that there is an error in the way in which paragraph 6 deals with the question as being one merely of honesty.  To say that they have taken too narrow a view is a misreading of paragraph 6.  They have decided first upon the honesty or otherwise of Mr King.  They have gone on from there to make a positive finding that in fact the letter was posted on 28 December.  That is a finding of fact with which we cannot interfere.  It is not a question of law at all.

	It is said that they have not observed the correct burden of proof.  This came down to the argument that Mr King, giving his evidence, amounted to no more than a number of nebulous statements.  That is not how the Tribunal saw it.  There is no evidence that they have shifted the burden of proof or made any error in the way in which they have approached it.

	Fourthly it is urged that the Tribunal acted inconsistently in that it adjourned in order to receive evidence from the Post Office and then when they obtained considerable documentary evidence, did not operate upon it.  Again that is a matter for the Tribunal to adjudicate upon which evidence they find compelling and that evidence which they find less compelling.  They have done that.  They have carried out their duty and again that is a finding of fact which cannot be attacked in this Tribunal.

	The final major ground put forward is that the whole decision was perverse.  That there was not sufficient evidence to persuade any reasonable Tribunal.  It is further pointed out that at one point the Tribunal refers to 4 collections being "skipped" whereas the documents say five.  It is said that shows an underlying malaise in that the Tribunal is not turning its mind to the matters effectively.  We do not accept that.  The Tribunal is perfectly entitled to draw its own conclusions on all the facts and in any event that is a very minor matter in connection with the entirety of this case.

	Finally, I turn back to paragraph 6 and the question which was put by Mr Monk about the way in which the extension is made here.  It is said:

"it was not reasonably practicable for the applicant to have presented it within time and we extend that time to midnight on the 2 January and it being received on that day we accept jurisdiction."

	It is perfectly right that, as Mr Monk says, in fact it was not received until 3 January so prima facie an extension until 2 January is of no assistance to Mr King.  We are all of the view having looked at the context in which the 2 January is mentioned, that that is an error by the Tribunal which can be rectified under the appropriate slip rule and the date should have been 3 January.

	Mr Monk in his final submissions said that if we were to allow this appeal to go forward with the Tribunal still having jurisdiction, we would be creating a precedent.  Again that is a fundamental misunderstanding.  The fact that a Tribunal decides something upon a set of facts does not create a precedent.  It may well be that others may come forward.  Others may tell roughly the same story that they posted letters at dates which were earlier than the postmark and it may well be that other tribunals will come to a very different conclusion from that in this particular case.

	In all the circumstances there is nothing in this appeal and it is dismissed.