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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> I L Wastepaper (UK) Ltd v Constable [1993] UKEAT 225_93_2104 (21 April 1993) URL: http://www.bailii.org/uk/cases/UKEAT/1993/225_93_2104.html Cite as: [1993] UKEAT 225_93_2104 |
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At the Tribunal
Before
HIS HONOUR JUDGE J PEPPITT QC
MR D G DAVIES
MISS A P VALE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants MR N GRUNDY
(OF COUNSEL)
Messrs Gorrin Kenyon
12-14 Millgate
Stockport
Cheshire SK1 2NN
For the Respondent NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF THE
RESPONDENT
JUDGE J PEPPITT QC: This is an appeal from a decision of a Chairman of the Manchester Industrial Tribunal made on 24 March of this year. By his decision the Chairman refused the Appellants' application for a witness order in respect of a Mr Simon Marsden who they wished to call on their behalf in answer to the Respondent's complaint that he had been unfairly dismissed.
The refusal by the Chairman followed an application made on 22 March 1993 by solicitors acting on behalf of the Respondents. The hearing then fixed for the 25 March, some three days later, was subsequently adjourned by consent between the parties. The Respondents require to call Mr Marsden because he was the depot manager to whom the Respondent reported. He was the person who effected the dismissal which was on the grounds of alleged falsification of the Respondent's timesheet.
He and only he can give the relevant evidence of the dismissal. He and only he can describe the circumstances which surrounded it and the investigations he made before he effected it. He is also, we are told, in a position to give evidence of an admission made by the Respondent at the time of his dismissal. Some indication of his importance to the Respondents can be found in the fact that it was he who completed the Respondents' Notice of Appearance to the Originating Summons and that document bears his signature.
In the letter of 24 March 1993 no reasons are given for the Chairman's refusal to grant a witness order; the letter merely concludes with the words:
"Your request for a witness order has been considered and is refused."
Mr Grundy on behalf of the Appellants submits that in those circumstances the Learned Chairman who considered the matter must either have misdirected himself in law or alternatively must have reached a conclusion which was perverse in the sense that no Tribunal reasonably considering the application could have reached it. He refers us to the case of Dada v Metal Box Co Limited [1974] ICR 559, a decision of the Industrial Relations Court under the Chairmanship of Sir John Donaldson. In that case the Tribunal said that in considering applications for witness orders there were two considerations which should be uppermost in the Tribunal's mind. Firstly, was the evidence relevant and secondly was it necessary to issue a witness order to secure the witness' attendance at the hearing.
In this case the evidence which Mr Marsden would give is plainly relevant. It is also apparent from the Respondent's Solicitor's letter of 22 March to which we have referred that without a witness order Mr Marsden, who has since left the Respondents' employment, would not attend the hearing. In those circumstances we are of the view that the two pre-conditions referred to in the Dada case are fulfilled. It is not possible for us in the absence of any reasons from the Chairman's decision to indicate precisely what the basis of his reasoning was. If it was because the application was made late in the day, that reason no longer attains because the hearing of 25 March was by consent adjourned. That apart, it seems to us that there is every reason for the grant of a witness order in this case and no serious argument to the contrary. In those circumstances, looking at the matter as we do today, it seems to us that the decision of the Chairman was plainly wrong and accordingly this appeal will be allowed and an order made for the issue of a witness order in relation to Mr Marsden.