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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Okponobi v Holland & Barrett Retail Ltd & Ors [1999] UKEAT 1175_98_1507 (15 July 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/1175_98_1507.html Cite as: [1999] UKEAT 1175_98_1507

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APPEARANCES

 

For the Appellant	MR A OLUFEKO Messrs Olufeko & Co Solicitors 85 Kingsland Road Shoreditch London EC2 8AG
For the Respondents	MR D READINGS (of Counsel) Mr R Craddock Head of Legal Services Holland & Barrett Retail Ltd Samuel Ryder House Townsend Drive Attleborough Fields Nuneaton Warwickshire CV11 6XW


 


JUDGE WILSON: This has been the hearing on full argument of the appeal by the original Applicant and the cross-appeal by the original Respondent. I shall refer to them as 'Applicant' and 'Respondent' for the sake of clarity. The Applicant has been represented by Mr Olufeko and the Respondent by Mr Readings, both representatives having been present at the proceedings before the Employment Tribunal which resulted in these appeals today.

1. The decision of the Employment Appeal Tribunal was first of all to find that the application to postpone the hearing because the Respondent had failed to comply with the order for inspection should be dismissed. Secondly that the application to postpone the hearing because the Applicant was absent should be dismissed. Thirdly, having considered the Originating Application to dismiss it in the absence of the Applicant under rule 9(3) of schedule 1 to the Industrial Tribunal's Regulations 1993. Fourthly, to dismiss the application to postpone the hearing because the Applicant's representative had absented himself and fifth and finally, to find that the Respondent was entitled to be paid by the Applicant, upon its counter-claim, the sum of £809.93.
2. There is no appeal concerning the decision to dismiss the application to postpone the hearing because the Respondent had failed to comply with the order for inspection. So far as the other four matters are concerned, there are live issues.
3. The Employment Appeal Tribunal, which heard the preliminary hearing, allowed the appeal to proceed on two points. The first was that the rule upon which the Employment Tribunal had relied (rule 9(3)) had been misinterpreted and that where that rule provides for as follows:

"If a party fails to attend or to be represented at the time and place fixed for the hearing, the Tribunal may…[etc. etc.]"

The question for argument and construction was whether the phrases "to attend or to be represented" are conjunctive or disjunctive. In the event, Mr Readings, on behalf of the Respondent, does not seek to defend the interpretation put upon those phrases by the Employment Tribunal. In our view, they are conjunctive without a doubt.

4. It follows therefore, that in purporting to dismiss the application pursuant to rule 9(3), the Employment Tribunal fell into an error of law and their order must be quashed. We are invited by Mr Readings to say that they would have come to the same conclusion or achieved the same end if they had refused the application to postpone and called upon the Applicant to prove his case, or rather Mr Olufeko to prove his case. Whether that is the case or not is speculative.
5. In any case, in our view, the principle which is applicable but not mentioned, is the need to ensure that justice is done if at all possible. It seems to us that the decisions taken by the Employment Tribunal prevented that happening because as the Tribunal said itself in its decision, the Originating Application makes serious allegations and contains triable issues. Similarly, the counter-claim concerns a serious amount of money and the Applicant is entitled to cross-examine the witnesses who seek to prove that debt to the company. That, of course, did not happen and we consider that there should be an opportunity for a differently constituted Employment Tribunal to consider the whole matter at issue between these parties.
6. Accordingly, we shall direct that the matter be remitted to the Employment Tribunal for trial of the Originating Application and the counter-claim. In saying that, we observe to the Applicant that it behoves him to ensure that all his arrangements are competently in place because he can expect short shrift if they are not. And it behoves Mr Olufeko to ensure that he briefs Counsel if he himself is either indisposed or unable to attend, because that is not an acceptable excuse or reason for an adjournment.