Appeal No.	 EAT/1093/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 February 1997

Before
HIS HONOUR JUDGE COLIN SMITH QC
MR D J HODGKINS CB
MISS A MADDOCKS OBE

MR C REDIF	APPELLANT

ERMIS IMPORT/EXPORT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	JUDGE COLIN SMITH QC:   This is an application for leave to proceed to a full hearing of an appeal by Mr Redif who appears before us today in person from a decision of an Industrial Tribunal held at London (North) on 28th May 1996, when the Industrial Tribunal held that it did not have jurisdiction to hear the appellant’s complaint of unfair dismissal because it was out of time, and according to the findings of the Industrial Tribunal it was reasonably practicable for it to have been presented in time. Extended reasons for the decision were sent to parties on 20th August 1996. We have reminded ourselves that the appellant before us today need only show an arguable point of law to be entitled to proceed to a full hearing.

	It appears from the decision of the Industrial Tribunal, that the appellant was employed as a presser by the respondent employers, Ermis Import/Export Ltd, from 8th October 1984 until his dismissal for redundancy on 9th August 1995. It is apparent from the decision that the cause of the dismissal, at least as put forward by the respondents, was the insolvency of the respondent company and the consequent redundancy of the appellant. We have seen a recent letter on the notepaper of a firm of licensed insolvency practitioners and accountants, by name Kallis & Co, which describes the respondents as being in liquidation. The Industrial Tribunal found in paragraphs 3 and 4 of the decision that the appellant had decided to wait for his statutory redundancy payment before taking advice from a Citizens Advice Bureau, and thus did not present his origination application until 19th December 1995, i.e., well after the three month time limit. The Industrial Tribunal unanimously concluded that it was reasonably practicable for the appellant to have presented his claim in time, and dismissed the complaint on those grounds.

	We have had presented to us as part of the bundle a quite recent medical report dated 11th October 1996 from a consultant psychiatrist, and we have looked at that document, although we are not by any means sure that it is a document we really should receive in evidence. However, because the appellant is in person, we thought it right that we should consider this medical report and we have done so. We repeat that it is a medical report from a consultant psychiatrist which shows that since March 1995 the appellant has been suffering intermittently from mental illness which appears to have been quite serious at times. The psychiatrist expresses the opinion that the appellant would not have been able to make a reasonable appeal against his dismissal from work. However, we must deal with the matter on the basis of the Industrial Tribunal’s decision, and the findings of fact which were made by the Industrial Tribunal. We should say that we also note that the IT1 was completed by the appellant personally and appears to be perfectly sensibly drawn. We do not consider that this report, which is unspecific as to dates, provides any possible new grounds for doubting the correctness both in law and in fact of the Industrial Tribunal’s decision. We should add that we would have expected had there been any such issue as to the medical fitness of the appellant to have presented his complaint in time that that would have been raised at the appropriate stage, namely before the Industrial Tribunal. We have of course taken into account what Mr Redif has very courteously said to us today, namely that the impression that he gets is that only he and one other were actually dismissed, and that the remainder of the staff at Ermis Import/Export Ltd had continued to work, and are continuing to work to this day. We certainly note those observations, but of course they do not touch upon the issue which we have to determine today, which is the narrow one as to whether there is any possible point of law arising out of the Industrial Tribunal’s decision that the originating application was out of time. Therefore, although we note what Mr Redif says, we do not find that it alters our view as to the apparent correctness of the Industrial Tribunal’s decision. Accordingly for those reasons we regret to have to say that we cannot detect any point of law here and we must refuse leave for this matter to proceed to a full hearing so that the appeal will have to be dismissed.

	We should add that from the documents in front of us, it appears on the face of the documents, that the appellant has, perhaps with the help of the liquidator, been able to exercise his rights under Chapter 6 and Part 12 of the Employment Rights Act 1996. From the papers provided to us by the liquidator, it appears, and there is no dispute about this, that the appellant has received a payment out of the appropriate fund from the Secretary of State in relation to redundancy, namely a payment of £1,760. It is also apparent from the papers and accepted by Mr Redif that he has received compensation from the respondent employers in respect of accrued holiday pay entitlement in the sum of £512.64 which was paid to him on 6th December 1995. In addition, from the papers in front of us, it appears to us that the appellant should have received a sum of £869 on or about 19th February 1996 from the Secretary of State under Part 12 of the 1996 Act by way of compensation for an insolvent employers failure to give proper statutory notice, and we have seen the documents that appear to record that payment having been made to the appellant. However, Mr Redif tells us today that he has not received this payment, although it was apparently correctly sent to his address at 319 Chigwell Road, Woodford Green, Essex. We are concerned about that matter, and we have advised Mr Redif that he should get in touch immediately with the firm of Kallis & Co in order to find out just what has happened in relation to that payment.

	It seems to us that were the claim for unfair dismissal ever to be heard by the Industrial Tribunal, since it appears that the respondents are in liquidation, and even if the claim were to succeed, any compensatory award would rank as an unsecured debt against a company in liquidation and be most unlikely therefore ever to be satisfied. However, it is important that Mr Redif does recover all the sums to which he is entitled arising from the insolvency of the respondents. For those reasons for which we have attempted set out in a little detail, this application for leave to appeal will have to be dismissed.