Appeal No. EAT/497/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 14th October 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M L BOYLE

	MR A D SCOTT

CHARTER SECURITIES t/a	APPELLANTS
 CHARTER PROJECT MANAGEMENT INTERNATIONAL

MRS L BLAKELEY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R M WOODS
(Representative)

	

	MR JUSTICE WOOD (PRESIDENT):  This is an Appeal by way of a Preliminary Hearing by Charter Securities Ltd t/a Charter Project Management International or Charter Span against a Decision of an Industrial Tribunal sitting in London (South) on the 26th June 1991 under the Chairmanship of the learned Regional Chairman Mr Oliver Lodge.

	The issue before the Tribunal on that day was whether it had jurisdiction to hear an application by Mrs Blakeley, who claimed in her Originating Application non-payment of due salaries and expenses against the Company.

	She appeared in person, and Mr Woods who is a Quantity Surveyor and a Director of the Company, appeared on behalf of the Respondents.

	The Tribunal heard evidence from the Applicant and considered the provisions of Section 5(2) of the Wages Act 1986.  That in its wording is very similar to the provisions of Section 67 of the Employment Protection (Consolidation) Act 1978.  Section 5(2) reads:
"An industrial tribunal shall not entertain a complaint under this section unless it is presented within the period of three months beginning with -

(a)in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b)in the case of a complaint relating to a payment received by the employer, the date when the payment was received,

or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented with the relevant period of three months."

	The Applicant's employment with the Respondents ended on about 22nd February 1990 and accordingly the time limitation for the presentation by her of her claim would have been in the May of 1990, in fact the Originating Application was not presented until 5th March 1991.

	The issue is essentially one of fact and industrial tribunals are very familiar with the numerous cases under Section 67 which would also be applicable to Section 5(2).  It decided as matters of fact two things, in paragraph 3 the Decision says:
"We heard evidence from the applicant, which we accept, that, although she knew of the existence of Industrial Tribunals, she believed that they were concerned only with dismissal cases."

and in paragraph 5:
"We are satisfied that the applicant was ignorant of the Tribunals' jurisdiction in relation to non-payment of wages until very shortly before she presented her complaint to the Tribunals."

	They therefore find it was not reasonably practicable within the terms of the sub-section and they decide that they will hear her case.  

	It is true that she had consulted, certainly three firms of Solicitors, but the Tribunal take that into account, and also take into account, as they are entitled to do, the state of the law at that time and that there were conflicting decisions of this Court on the jurisdiction of industrial tribunals under the Wages Act.

	So they looked at that point and they took it into account, nevertheless they decided as they did, on the facts.

	Mr Woods appears for the Respondents before us today.  He is clearly an accomplished advocate and well able to put his case.  He has taken a number of points the first one of which is that he did not have an opportunity of giving evidence before the Industrial Tribunal;  and secondly, he did not have an opportunity of presenting his case.  

	We find that very difficult to accept, having seen and heard him and with the knowledge of the way the Industrial Tribunal would approach the issue.  We believe that there is a misunderstanding in his mind.  The misunderstanding is to fail to appreciate the difference between a tribunal saying that "it has no jurisdiction to hear an application" and a tribunal saying that "we will start to hear the application but the application fails in limine because on the facts the claim is not substantiated".

	Thus a number of the points that he wishes to put to the Tribunal are perfectly capable of being put when the Tribunal start to hear the case.  There are some three or four points which no doubt are arguable and the learned Chairman who hears the case may very well allow them to be raised.  It is a matter for him but we see no reason why they should not be raised if they are raised carefully, accurately, and courteously as I am sure they will be.

	The only point that we have before us is this, did the Industrial Tribunal err in law in deciding that it had jurisdiction to start to hear the claim being made by Mrs Blakeley under the Wages Act.  We can find no error of law in this Decision and the Appeal must be dismissed at this stage, which it is.  

	The case will then proceed and Mr Woods will be able to make all the points that he wants to make in due course.