Appeal No. EAT/1200/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 15 February 1995

	Before

	THE HONOURABLE MRS JUSTICE SMITH

	MR J R CROSBY

	MR J D DALY

MR R CHERRIE	APPELLANT

THE LEWIS GROUP PLC	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	
IN PERSON

	

MRS JUSTICE SMITH:	This is an appeal against the refusal of an Industrial Tribunal Chairman at Ashford, Kent, to make a witness order in respect of a Mr Geoffrey Barnes, the Customer Care Officer of Royal Mail at Canterbury, to attend the hearing of the Appellant's claim for unfair dismissal.  

	The Appellant Mr Cherry, was employed as an Enquiry Agent and Field Investigator by the Respondents, the Lewis Group plc, from 1987 until he was dismissed in February 1994.  He made a complaint to the Industrial Tribunal which is dated 16 May 1994 but was not received at the Tribunal offices until 25 May.  A hearing was set for 5 January 1995 which was to be the hearing of a preliminary issue as to jurisdiction, as it was contended by the Respondents that the originating application had been lodged out of time.  However, the Tribunal Chairman directed that if the Tribunal decided that there was jurisdiction, they would continue there and then with the hearing on the merits.  

	In December 1994, the Appellant applied for several witness orders.  These were witnesses whom he intended to call at the hearing on the merits, not in respect of the preliminary point on jurisdiction.  Some of his applications were granted but three were refused.  The Appellant attempted to appeal to this Appeal Tribunal prior to 5 January but due to the closure of the office over the Christmas vacation, his appeal was not heard.  The hearing went ahead on 5 January 1995 and the claim was dismissed for want of jurisdiction.  The Appellant then applied for a review which will be heard at the end of March 1995.  The Chairman has directed that if the review is successful and if the decision on jurisdiction is then reversed, it will be his intention to proceed on that day with the hearing on the merits.  Accordingly this appeal is proceeds before us today.  

	During the hearing, the Appellant has withdrawn his appeal in respect of the two witness orders relating to Mrs Bowden and Mr Sanders.  Being unrepresented, he had not realised that he would not be able to cross examine his own witnesses at the hearing before the Industrial Tribunal.  When that was explained to him, he accepted immediately that the evidence of Mrs Bowden and Mr Sanders would be of no assistance to him.  Accordingly we are left to consider his appeal in respect of Mr Barnes, the Customer Care Officer. 

	The Appellant has told us that in his view, Mr Barnes' evidence is relevant to his claim that he was unfairly dismissed.  While working as an enquiry agent and field officer, his work was sent to and from the respondents' Head Office at Bradford by post.  He himself was based in Kent.  Suddenly, at about the end of 1991 or early 1992, he began to experience difficulties with postal deliveries of his mail sent to the Respondents at Bradford.  He suspected that these difficulties were the result of deliberate interference with his mail by Royal Mail employees at the instigation of the Respondents.  Be that as it may, he wishes to demonstrate to the Tribunal the difficulties that he experienced.  He considers that the lateness and non arrival of his mail, was a contributory cause of the Respondents' dissatisfaction with him, which he believes resulted in his dismissal.  

	In fact on examining the Respondents' notice of appearance, it is seen that they claim to have dismissed the Appellant because he refused to meet with management to discuss his performance.  They did not dismiss him on account of his performance. Thus it appears to us that the late arrival of his mail will be of marginal, if any, relevance to this hearing.  In any event the Appellant has told us that he has kept all the correspondence which he has conducted over the past two to three years with the Royal Mail, in respect of his dissatisfaction with their services.  He has shown us a list of that correspondence which was before the Industrial Tribunal Chairman.  Also he has shown us two letters from the Royal Mail which contain apologies for poor services.  

	The Chairman in refusing the witness order requested said this:

		"The witness order for Mr Barnes has been refused.  His evidence is not material to the issues in this case.  Any relevant correspondence can be provided without the need for Mr Barnes to attend."  

	We have asked ourselves whether the Chairman has misdirected himself in law or whether he has exercised his discretion in this matter on a basis which is unjudicial or perverse in the sense of being wholly unreasonable.  We do not think that his decision can be criticised.  He has said that he does not consider the evidence of Mr Barnes to be material to the issues in this case.  Even after listening for a considerable time to Mr Cherry, we can only detect a marginal and doubtful relevance to the issues which may come before the Tribunal if, as seems unlikely, the question of the Appellant's competence and performance is ever ventilated.  

	In any event, it seems to us that the Chairman was right to observe that relevant correspondence can be provided without the need for Mr Barnes to attend.  The correspondence exists.  We have seen some of it.  If the question of late delivery of mail does become a relevant issue, which we doubt, that correspondence can be put in.  We cannot see any basis upon which the presence of Mr Barnes could be of any possible advantage to the Appellant. 

	We are satisfied that the Chairman's decision does not disclose any error of law.  Nor is it an unreasonable exercise of his discretion.  Indeed even having listened, as we have done this morning, to Mr Cherry for some two hours, we have reached the same view.  Accordingly this appeal must be dismissed.