Appeal No. EAT/1019/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14th December 1993

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR K M HACK JP

	MS D WARWICK

McCARTHY CHRISANTI MAFFEI INC	APPELLANTS

MR S BRANN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MS A WOOD
Solicitor of
Messrs Lovell White Durrant
Solicitors
65 Holborn Viaduct
LONDON
EC1A 2QY

For the Respondent	MR R WHITTINGHAM
Solicitor of
Messrs Hobson Audley
Solicitors
7 Pilgrim Street
LONDON
EC4V 6DR

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal against the refusal of the Industrial Tribunal (London South) to postpone the hearing of a complaint by Mr Brann for unfair dismissal against his former employers, McCarthy Chrisanti Maffei Inc..  The dispute is substantial and two days have been fixed for the hearing, the 20th and 21st December 1993.  Those dates were notified to the parties on the 24th November 1993 following an earlier postponement in August 1993.

	The ground for the application for postponement was that the main witness, relied on by the Respondents to the application, will be in South Africa at the date of the hearing.  The evidence is that she will be leaving on the 16th December and will not be returning until the 10th January 1994.  That witness is Lauretta Gell.  She is referred to by name in the Notice of Application and in the Notice of Appearance.  She is clearly someone who will be able to give relevant evidence.  The Respondents wish her to be present at the hearing.

	The Tribunal refused the request for postponement for reasons that are understandable.  The Industrial Tribunal is heavily pressed with a backlog of cases.  Postponing a two day hearing at short notice is likely to increase rather than diminish the problems of the Industrial Tribunal in managing its case load.  We have to view that general difficulty, however, against what is required as a matter of justice between these parties.

	We can only interfere with the decision refusing postponement if we are satisfied that no reasonable Tribunal would have refused an adjournment in these circumstances.  We have to be satisfied of that because the jurisdiction of this Tribunal is limited to errors of law on the part of an Industrial Tribunal.  

	We have reluctantly come to the conclusion that the only reasonable step that could have been taken by the Tribunal in this case was to grant an adjournment.  If the matter had proceeded on the 20th December in the absence of Lauretta Gell there would still have had to be an adjournment of a part heard case for her evidence to be given at a later date.  There would, therefore, be an inevitable delay in a decision on Mr Brann's application.

	In our view, the only reasonable course in these circumstances would have been for the Industrial Tribunal to have postponed this matter to be heard as soon as possible after Lauretta Gell's return to England on the 10th January 1994.  If the hearing begins after that date she will be able to be present throughout the hearing.  There will then be no sense of injustice on the part of the Respondents in the way that the case has been conducted.  The adjournment will not prejudice Mr Brann who neither opposed not supported the application by the Respondents.

	We make it clear that there can be no question of any further adjournment of this matter on the grounds of the absence abroad of Lauretta Gell or anyone else.  This case has been waiting quite long enough for hearing.  The parties must make sure that their witnesses are available at the adjourned hearing.  If they are not the matter will have to proceed in their absence.  The Industrial Tribunal cannot repeatedly postpone the hearing of cases to suit the convenience of individual litigants.

	There is one other matter which we have mentioned during the hearing.  There has been no direction for the exchange of witness statements in this case.  We do not propose to order exchange, but it does appear to us to be a substantial case in which the issues between the parties may be better identified if the parties voluntarily exchange, prior to the hearing, the statements of the witnesses whom they intend to call.

	For those reasons we will allow the appeal;  we direct that the 20th and 21st December 1993 be vacated and that an application be made to the Industrial Tribunal to fix a new date as soon as possible after the 10th January 1994.