The applicant had been dismissed for gross misconduct and commenced proceedings but withdrew them after he had seen CCTV footage which the employers were using as evidence. He then tried to reopen the claim, on the grounds of new evidence, but various delays and mistakes meant that a properly constituted appeal notice was not instituted until it was 69 days out of time. The registrar refused the application and this was upheld by Wilkie J as there was no exceptional reason as to why the appeal could not have been presented in time.

In this application, the applicant submitted that the reasons for the error were that he was not legally represented. Sir Scot Baker rejects that submission as the absence of legal representation "is not without more a reason for not complying with time limits"
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Case No: A2/2009/1348
Neutral Citation Number: [2010] EWCA Civ 245
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 29th January 2010

Before:

SIR SCOTT BAKER 

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Between:

**FUNDIRA (Appellant)

• and -
  

STAGECOACH SERVICES LTD (Respondent)**

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(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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THE APPELLANT APPEARED IN PERSON.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

(As Approved by the Court)

Crown Copyright©

Sir Scott Baker: 

1. This is a renewed application for permission to appeal following refusal by Wall LJ on the papers.

1. The background facts are broadly as follows.  On 9 November 2007 Mr Fundira commenced proceedings against his employers, Stagecoach Services Limited, for unfair dismissal.  Stagecoach indicated that he had been dismissed for gross misconduct.  Mr Fundira says his dismissal was unfair because he was not guilty of gross misconduct.

1. On 11 March 2008, having been given the opportunity to view CCTV footage on which Stagecoach relied in dismissing him, he wrote to Stagecoach offering to withdraw his case on the condition that there was no order for costs against him and no order for costs against Stagecoach.  He wrote to the Tribunal to this effect at the same time and his claim was withdrawn.  On 14 March an employment judge duly issued judgment dismissing his claim following the withdrawal.

1. On 30 April Mr Fundira wrote to the Employment Tribunal requesting that it reopened the case.  It says he has just come across new evidence in his investigations.  Although he was out of time both for an appeal and for a review, the employment judge treated his letter as an application to review the judgment of 14 March, but on 16 May he refused the application on the basis that Mr Fundira had not shown any basis for the application or for an extension of time for applying for a review.  He did nothing about this decision until he launched an appeal with the Employment Appeal Tribunal.  The notice was dated 16 August and received by the Tribunal on 20 August.  That was an appeal against the decision of the employment judge not to review his case.   The notice of appeal was defective and accordingly the appeal was not duly instituted until 4 September, which was by then was 69 days out of time.  The registrar notified Mr Fundira that if he wished to pursue the matter he had to apply to have time extended within 14 days.  After further correspondence between the Tribunal and the parties, the registrar of the Employment Appeal Tribunal ultimately dismissed the application for an extension of time in which to institute the appeal, noting that there was no exceptional reason shown why an appeal could not have been presented within the time limit laid down in the Rules.

1. Mr Fundira appealed against this decision to a judge of the Employment Appeal Tribunal under the Employment Appeal Tribunal Rules 1993.  Wilkie J upheld the decision of the registrar refusing an extension of time in appealing to the Tribunal, refusing to reopen Mr Fundira's original case.  He said that the registrar was entitled to come to the view that there was no exceptional reason why an appeal could not have been presented within the time limit laid down by the Rules and dismissed Mr Fundira's appeal.

1. Mr Fundira's answer to this is that he was not legally represented and was not familiar with the Employment Tribunal and Appeal Tribunal process. It is not his fault he didn't make an application in time.  He also said that he had overwhelming evidence that the case against him was not genuine and was part of an elaborate scheme.  He should therefore, he submits, be given permission to appeal.

1. The answer to these points in short is that the absence of legal representation is not without more a reason for not complying with time limits.  The applicant provides little more than assertions that the case against him was not genuine and part of an elaborate scheme and the time when he should have marshalled facts and put his case was before the Employment Tribunal in due time.  In my judgment the employment judge was entitled to refuse to review his case and Wilkie J at the Employment Appeal Tribunal was right to uphold that decision, having found that there was no error on the part of the Tribunal.  The single judge said he could detect no error of law in either Wilkie J's decision or the decision below of the Employment Tribunal by the registrar.  He said the applicant has had ample time to make a claim against his employer.  He has not only agreed to his claim being dismissed but is now way out of time.  Enough is enough.  Both the registrar and the judge were exercising a judicial discretion with which the Court of Appeal will not interfere.  It follows that an appeal would not stand any prospect of success.

1. I have reviewed carefully the decision of Wilkie J and in order for this appeal to succeed there would have to be identified in his decision some error that was at least arguable as being an error.  I can find nothing of the kind and in these circumstances this renewed application must be dismissed.
   

Order:  Application Refused