Appeal No.	 EAT/784/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 June 1998

Before
HIS HONOUR JUDGE J HULL QC
MR P A L PARKER CBE
MS D WARWICK

MR M JANKOWSKI	APPELLANT

(1) CEDEF FINANCE (UK) LTD  (2) INTERDALE GMBH 	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR B CARR
(of Counsel)
Salans Hertzfeld & Heilbronn HRK
Clements House
14-18 Gresham Street
London EC2V 7NN	
For the Respondents	MR M REEVE
(of Counsel)
Withers
12 Gough Square
London
EC4A 3DE	

	JUDGE J HULL QC:     This is an appeal to us from a decision of an Industrial Tribunal by which an adjournment of this case, which is a significant case, was refused.

	The short chronology is most helpfully set out in an affidavit of Miss Hogarth, Solicitor now acting for the Appellant, the Applicant in the Industrial Tribunal.  Shortly, what the case is about is an application by Mr Jankowski on the basis of unfair dismissal involving alleged constructive dismissal.  Mr Jankowski is a commercial man (if I can put it like that).  He is a Managing Director of one or other of the Respondents and employed (I think) to manage the other one in the course of his employment and he, as I say, claims that he was unfairly dismissed.  

	There is a vigorous defence, as we understand it, of that.  First of all, it is said that he was not dismissed; he resigned; and then there are complaints about him.  There are also High Court proceedings threatened by Mr Jankowski and also by the Respondents or persons with whom they are associated, alleging important breaches of duty by Mr Jankowski, which he in turn strenuously denies.  

	That being the position, the chronology is set out, as I say, most helpfully by Miss Hogarth.  On 22 September 1997 the events arose which Mr Jankowski says amounted to a dismissal of him in the sense that he was constructively dismissed then and on 17 December, evidently being in no enormous hurry to begin proceedings, he did in fact present his IT1 to the Industrial Tribunal.  That is with our papers.

	On 19 January 1998 the Answer was presented to the Industrial Tribunal.  Mr Jankowski, I should say, employed very well known Solicitors to act for him in this matter.  

	On 21 April directions were given by the Industrial Tribunal Chairman.  That is to be found at page 13 and the Chairman gave directions that it was to be a single day hearing “unless either party informs me immediately that more than one day will be required to complete the hearing”.  In that case the Chairman wanted to be given particulars of why more than one day would be required.  “Discovery”, the Chairman said that each party should, within 14 days, disclose to the other all documents on which it intended to rely at the hearing.  “A formal order will be made on application by either party”.  Then the Chairman referred to the practice of drawing witness statements and gave directions for an agreed bundle, at that stage treating it as a very straightforward matter, apparently.  

	On 12 May a Notice of Hearing was sent to the parties.  It is worth referring to that.  It gives notice of the hearing on 18 June, that is two days from today.  It tells Mr Jankowski, as no doubt it told the Respondents, that he was to be responsible for ensuring that all witnesses could attend on the hearing date.  It then said:

“1.  Unless there are wholly exceptional circumstances no application for postponement due to non-availability of witnesses or for other reasons will be entertained, if it is received more than 14 days after the date of this notice.
2.  Any such application must be in writing and state the full grounds and any other unavailable dates in the 6 weeks following the above hearing date.
3.  If you consider that the hearing is likely to last more than one day you must inform the Tribunal office within 14 days after the date of this notice.” 

	And guidance notes were sent with that.  Nothing, one would have thought, could be much plainer than that.

	Apparently, what happened was that some time after that Mr Jankowski ascertained from his then Solicitors that they had done, as we are told, nothing whatever to prepare for the hearing; nothing to warn witnesses; nothing to comply with the court’s order for discovery; nothing to draw up witness statements; nothing.  And furthermore, it was suggested by the Respondents’ Solicitors that the hearing might well take three days and, apparently, the Applicant resisted that.

	However, on 4 June, the Applicant instructed his present Solicitors and they set about, as soon as they had received the files (which was not for another five days) from the previous Solicitors, with what appears to be enormous zeal and energy, attempting the impossible; to prepare this case, which we are told now is of considerable complexity and, of course, importance, in the very few days which remained before the hearing.

	On 10 June, not only was a request for discovery sent and a request for further particulars which had been settled by Mr Carr, but a flurry of other activity was engaged in and the Industrial Tribunal, itself, was notified that there should be an adjournment or as it was put, apparently, “a postponement”.

	On 9 June the Tribunal replied refusing the request for any adjournment and the Chairman said:

“The case is straightforward unfair dismissal and appears to have been clearly pleaded.
The case is listed for one day and Mr Jankowski should arrange for the care of his wife during that date.
The change of Solicitors should not make a material difference to the hearing, there are still 7 days before the hearing.”

	I should say with regard to the last but one paragraph that unhappily, for several weeks at any rate, if not perhaps longer, Mrs Jankowski has been suffering from a nervous illness and the treatment at first attempted, according to a letter we have been shown, made her worse, although that has now been discontinued.  Clearly, that must be a major preoccupation for Mr Jankowski and was a matter, therefore, which was rightly referred to the Tribunal, though perhaps not the most important matter because she has been in his care and naturally he would want to make arrangements for her care whilst he is attending the Tribunal.

	Then there was further correspondence.  All the material parts have been read to us by Mr Carr, for which we are very grateful, and on 12 June, a further request having been made to the Tribunal, the Tribunal replied as follows:

“The Chairman refuses your request for the following reasons:
The writ has not yet been served [that refers to High Court proceedings].  The application for postponement can be made to the Tribunal at the beginning of the proceedings for their consideration.”

	And Mr Carr says, justly, that will involve preparing the case and it will involve expenditure of costs and unnecessary steps if the Tribunal does, indeed, decide at the hearing to adjourn the matter, but nonetheless, that is the position.  The Tribunal has continued to refuse the adjournment.  It said that the Tribunal did not refer to all the matters which had been explained to it in the letters which were written, requesting an adjournment.  So be it.  

	The fact is that we can only interfere with the exercise of discretion by the Tribunal if we are satisfied that there has been an error of law.  We are most certainly not like the Court of Appeal or the Crown Court, which can intervene on matters of mixed law and fact and so forth and take a broad view of the case, it is only if there has been an error of law.  The responsibility for trying the case fairly and justly is on the Tribunal.  It is not shared with us.  The Tribunal has the duty of considering, at all stages, what justice requires.

	On Thursday morning it may very well be (we do not know) that an application will be made to the Industrial Tribunal to adjourn.  Almost certainly, despite the heroic efforts of the Solicitors in the short time that they have had, the Tribunal will be confronted with a situation in which it is clear that certain aspects of the case, at any rate, are not ready for trial.  It will be for the Tribunal to say whether it thinks it right to proceed in all the circumstances.  A day has been fixed.  The Respondents wish to proceed.  The Applicant says, or may say, there are various reasons why the case should not proceed.

	If that is so, then that is entirely due, on the account that we have been given, to the remarkable failure of the Applicant’s Solicitors to do their job.  I refer, of course, to the Solicitors first instructed, a well known firm.  There may be various reasons for that and I am not going to go through the possibilities, it would be pure speculation for us to say why they did not do their job.

	The Tribunal is under enormous pressure to find time to try cases promptly, as they are supposed to try them, and make the enquiries which they need to make; it is increasingly difficult.  Here the Tribunal, in its usual way, expressly requested information, at an early stage, about whether there was any reason why the date was inconvenient or whether the time of one day was insufficient and even that information did not come along until much too late.  

	In the circumstances it appears to us that the Tribunal was well entitled to say, “you can renew this application at the hearing” and it is not up to us to say exactly what was in the mind of the Tribunal, of course that too would be speculation.  But certainly, we can say that if we were dealing with it, we would have such matters as this in mind.  First of all the history of the matter.  Secondly, whether it was possible to make any progress on the day with the trial of the case.  But third, if not, and this is perhaps more important than anything, the parties are there and have prepared as well as they can for what is obviously going to be a complicated and important matter.  

	What directions should be given if it is not possible to proceed or if it is only possible to proceed to a limited extent, what directions should be given?  Is it right to proceed?  “The Respondents want us to start” the Tribunal will say, “Is it right for us to start?”.  The Applicant wants further discovery.  The Respondents have not complied, it is said, properly with the order for discovery.  Indeed, that seems to be the position.  Should further discovery be ordered?  If so, should there be a timetable?  Should there be specific discovery of particular documents?  Further particulars have been asked for.  Needless to say, we today have not gone into all the reasons why all the particulars are justified.  The Tribunal will be in a position to do so and hear the submissions of both sides on those matters.  Is it necessary to make particular provision for the unfortunate fact of the illness of the Applicant’s wife?  The Tribunal will want to consider that if representations are made to it.

	Then there is the question of witnesses.  There is a witness who has said “I am not willing to come”, his statement has not yet been taken.  Should the Tribunal issue a witness order?  Should the Tribunal excuse the making of any witness statement for that witness?  Should the Tribunal insist that if there is not to be a witness statement because the witness is unwilling to make one, then the best particulars that can be given of what he is going to say should be given to the other side?  And there may be many other matters, as I say.

	We have not called on Mr Reeve.  We do not know whether there are other matters which the Tribunal will want to consider.  We have been told that in that situation, the Tribunal may well wish to make an order for costs against the Applicant, that order being something which will be made under, as Mr Carr says, a different costs regime.  So be it.  The Respondents wish to proceed.  The Applicant wishes to have an adjournment.  I am assuming that he will wish to ask for an adjournment.  At any rate, that is a possible consequence.

	It seems to us that, overriding all this, is the consideration that an Industrial Tribunal must be master in its own house and we will not interfere with the duty of the Tribunal, of which the question of an adjournment is only one aspect, to arrive at the truth and do justice between the parties.  It is not up to us to second-guess the Tribunal or say what we would have done in the circumstances.  We certainly have not been into the matter sufficiently to enable us to offer an opinion on that.  It is the responsibility of the Tribunal and if it is said, in due course, that the Tribunal made errors of law, as a result of a wrong decision on this matter or other matters and that the Applicant has suffered as a result then that, of course, is a matter which can be brought to us on appeal on the usual basis that there are errors of law in the decision of the Tribunal.

	We were also pressed with the argument that a great deal hangs on the result of this hearing.  That may or may not be.  It is perfectly true that issues will be decided, which we are told (and it sounds as if it may very well be so) may affect or, as Mr Carr puts it, embarrass (I am not quite sure why they should be embarrassed) but findings may be made which will affect the hearing of any High Court proceedings which are brought; so be it.  It is the Applicant’s decision to go ahead with this relatively small claim, as it is compared with the large claims which we have been hearing about, and not to launch immediately into High Court proceedings.  There may be excellent reasons for that.  There may be results which are, as yet, unforeseen.  It does not appear to us that any of the matters about which we have heard from Mr Carr would entitle us to interfere with the exercise of discretion by the Tribunal, whether we happen to agree with it or not, and we therefore reject the appeal.