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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacKenzie, Re Application For Judicial Review [1999] ScotCS 183 (2 August 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/183.html
Cite as: 1999 SCLR 1085, [1999] ScotCS 183

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OUTER HOUSE, COURT OF SESSION

 

P18/14a/99

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD CAMERON OF LOCHBROOM

 

in the cause

 

WILLIAM MACKENZIE

 

Petitioner

 

for

 

JUDICIAL REVIEW OF A DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL (SCOTLAND)

 

 

________________

 

 

Petitioner: Henderson; Jardines

Respondent: Mrs Wolffe; Blackadder Reid Johnston

 

 

2 August 1999

 

The Petitioner in this application for judicial review as paragraph 5 of his Petition sets out, challenges a decision of the Employment Appeal Tribunal (Scotland)("the appeal tribunal") who are called as respondents. The Petitioner was called to answer before an Employment Tribunal ("the tribunal") a complaint by a former employee of his that she had been unfairly dismissed. Having heard evidence and submissions from the parties the tribunal determined on 14 September 1998 that the complainer had been unfairly dismissed. It made a monetary award in her favour. The Petition relates that the Petitioner sought to appeal against the decision of the tribunal to the Respondents. In the Petition it is stated that the grounds of appeal were rejected by the Respondents' Registrar on 22 February 1999 after it had been referred to the Employment Appeal Judge on the basis that there was no sustainable point of law. The Petitioner challenges "the Respondents' said decision" on the ground that "the Respondents erred in law in refusing to hear the Petitioner's appeal on the basis that there was no sustainable point of law raised in the Petitioner's grounds of appeal. There were sustainable points of law raised by the Petitioner in his notice of appeal." The Petitioner seeks "a declaration that the Respondents have jurisdiction to hear his appeal on the points of law raised in his grounds of appeal."

From the documents produced it appears that on 25 October 1998 the Petitioner's agents lodged with the Respondents a notice of appeal which intimated that the Petitioner's appeal was based on the following questions of law and related grounds of appeal:

"(a) Did the Tribunal err in law in its application of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to the facts?

(b) Did the Tribunal err in law by finding at page 5G that the letter of 1 May 1997 by the applicant was not a letter of resignation?

(c) Did the Tribunal err in law by finding at page 13E that the 4,000 payment was a 'loyalty payment' and not a payment in respect of the applicant's loss of statutory rights?

(d) Did the Tribunal err in law in deciding it was not just and equitable to take the 4,000 payment into account in calculating the applicant's compensatory award?

(e) Did the Tribunal err in law by finding at page 12D that the applicant's dismissal was not to any extent caused or contributed to by her own actions and behaviour?

5. The appellant's grounds of appeal are:-

A) The Tribunal erred in law in its application of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to the facts. At page 5H they determined that by letter of 1 May 1997 the applicant was terminating her employment relationship with the transferor as of 19 June 1997 which was the date of transfer. The letter and its acceptance altered the contract of employment between the applicant and the transferor on 1 May 1997 whereby it became a fixed term contract terminating on 19 June 1997. The rights, powers, duties and liabilities under or in connection with the applicant's contract of employment immediately before the transfer were, therefore, non-existent and incapable of being transferred to the appellant as transferee.

B) Having regard to the following facts:-

1. The applicant wrote a letter to the transferor of the undertaking in unequivocal terms resigning from her position at the date of transfer (page 4A-B);

2. The transferor was contractually bound by the missives to 'pay all redundancy money due to any employee employed by the seller' (page 6C); and

3. The transferor paid the applicant 4,000 prior to the transfer, a sum almost identical to her redundancy entitlement;

the Tribunal erred in law by finding at page 5G that the letter of 1 May 1997 was not a letter of resignation, a decision no reasonable tribunal properly directed in law could have reached and therefor perverse.

C) Having regard to the facts set out in head 2 above the Tribunal erred in law by finding at page 13E that the 4,000 payment was a 'loyalty' payment and not a payment in respect of the applicant's loss of statutory rights a decision no reasonable tribunal properly directed in law could have reached and therefor perverse.

D) The Tribunal erred in law in deciding it was not just and equitable to take the 4,000 payment into account in calculating the applicant's compensatory award.

E3) The Tribunal erred in law by finding at page 12D that the applicant's dismissal was not to any extent caused or contributed to by her own actions and behaviours. The applicant accepted that she regularly smoked cigarettes in the food preparation area and refused to countenance alterations to upgrade the menu. At page 8B-C the Tribunal found that the applicant did not smoke while food was around ignoring substantial evidence from other employees that she regularly smoked while cooking, a decision no reasonable tribunal properly directed in law could have reached and therefor perverse."

By letter dated 27 October 1998 the Deputy Registrar intimated to the Petitioner that for the reasons given in the letter the Respondents did not have jurisdiction to entertain the appeal. The Deputy Registrar stated that in his opinion "your Notice of Appeal does not identify an error in law, but seeks to challenge the Tribunal's findings in fact."

On 23 November 1998 the Petitioner's agents lodged a second Notice of Appeal. It contained some changes to the text, in that the questions of law and the grounds of appeal were now stated as follows:

"(a) Did the Tribunal err in law by finding at page 5G that the letter of 1 May 1997 by the applicant was not a letter of resignation?

(b) Did the Tribunal err in law in its application of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to the facts?

(c) Did the Tribunal err in law in deciding it was not just and equitable to take the 4,000 payment into account in calculating the applicant's compensatory award?

5. The appellant's grounds of appeal are:-

A) The Tribunal erred in law by finding at page 5G that the letter of 1 May 1997 was not a letter of resignation, by construing the unambiguous wording of the letter as meaning what was in the minds of the parties rather than what was actually said. In support of this ground of appeal the following authorities are referred to:-

Muirhead & Turnbull v Dickson 1905 7F. 636

Pren v Simonds 1971 3 All E.R. 237 (H.L.)

B.G. Gale Limited v Gilbert 1978 IRLR 453

Southern v Franks Charlesley & Company 1981 IRLR 278

B) The Tribunal erred in law in its application of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981 to the facts. It was not disputed that after the transfer the applicant was going to do the same job on the same basis as before. At page 5H the Tribunal found that by letter of 1 May 1997 the applicant was terminating her employment relationship with the transferor as of 19 June 1997 which was the date of transfer. The letter and its acceptance altered the contract of employment between the applicant and the transferor on 1 May 1997 whereby the notice provisions of the Employment Rights Act 1996, sections 86-93, were invoked, the contract terminating on 19 June 1997. The rights, powers, duties and liabilities under or in connection with the applicant's contract of employment immediately before the transfer were, therefore, non-existent and incapable of being transferred to the appellant as transferee. In support of this ground of appeal the following authority is referred to:

Secretary of State for Employment v Spence 1986 ICR 181 E.A.T.

C) The Tribunal erred in law in deciding it was not just and equitable to take the 4,000 payment into account in calculating the applicant's compensatory award. The missives bound the transferor to pay any redundancy money due to any employee. As at the date of transfer the applicant's redundancy entitlement was almost exactly 4,000. It was unreasonable not to take the ex gratia payment by the transferor into account."

By letter dated 24 November 1998 the Deputy Registrar advised the Petitioner that for the reasons stated in the letter the Respondents did not have jurisdiction to entertain the appeal and that, in accordance with Rule 3(3) of the Employment Appeal Tribunal Rules 1993, no further action would be taken on it. It is unnecessary to set out the reasons on which this decision proceeded because on 21 December 1998 a further notice of appeal was lodged for the Petitioner by his agents. A further question of law was added to those specified in the notice of appeal dated 23 November 1998. This was in the following terms:

"(a) Did the Tribunal err in law by failing to comply with the

rules of natural justice?"

This question was supplemented by a ground of appeal in addition to those stated in the earlier notice of appeal dated 23 November 1998 which were repeated in similar terms. This ground was :-

"5. The appellant's grounds of appeal are:-

A) The Tribunal erred in law by failing to comply with the rules of natural justice in that the Chairman of the Tribunal, Mr N.M. Hosie, had prior dealings with the appellant which may have biased him against the appellant. The Chairman is believed to be the senior court partner in the firm of Ledingham Chalmers, Solicitors, 17 Golden Square, Aberdeen. In 1997 his said firm acted for Mr. George McQuitty of McQuitty's, Solicitors, 97 Bonnygate, Cupar, Fife, in an ordinary action for payment of money against the appellant's property company Baluniefield Development Company Limited. Mr McQuitty had been the appellant's solicitor and the appellant's nephew, Ronald McKenzie, worked for him as a trainee solicitor. The appellant removed his legal business from Mr McQuitty's firm when his nephew moved to another firm and Mr McQuitty then pursued the appellant for outstanding fees owed by his said property company. These were disputed by the appellant and the Chairman's firm acted for Mr McQuitty in the aforesaid action at Cupar Sheriff Court. The appellant believes Mr McQuitty is a personal friend of the Chairman and believes the Chairman should have declared his interest prior to the start of the Hearing. The appellant only found out about the Chairman's connection with Mr McQuitty after the case was concluded and believes the Chairman may already have formed an adverse view of him prior to the Hearing where credibility and reliability were of the essence (page 7 G-H)."

On 6 January 1999 the Deputy Registrar advised that Petitioner that he had decided that as his view was still that no error in law had been identified, the matter should be referred to the Judge in terms of Rule 3(6) of the 1993 Rules.

On 10 February 1999 the Deputy Registrar wrote to the Petitioner's agents informing them that the Judge had instructed that before he considered the appeal, he wished to be informed of the exact date when the Petitioner became aware of the matter which he claimed resulted in possible bias by the Employment Appeal Chairman.

On 16 February 1999 the Petitioner's agents advised the Respondents that the Petitioner "first became aware of the Chairman's association with Mr. G. McQuitty and hence possible bias on 28 October 1998".

On 22 February 1999 the Deputy Registrar wrote as follows:-

"I write to inform you that your letter" dated 16 February 1999 "and all the papers were referred to Lord Johnston, the Employment Appeal Tribunal Judge, for his consideration, and he is of opinion that the Registrar's decision was correct. In his view, the Employment Tribunal have applied the correct tests, there are no sustainable points of law and, accordingly, no further action should be taken on the appeal."

At the start of the hearing, counsel appearing for the Respondents was given leave with the consent of the Petitioner, to add a plea to the competency of the proceedings. This was to the effect that the Petition was incompetent by reason that the Petitioner had failed to avail himself of the statutory remedies. For the Respondents counsel submitted that judicial review was not in the circumstances a competent mode of appeal. There was a statutory remedy open to the Petitioner in the form of an appeal on any question of law to the Court of Session in terms of section 37 of the Industrial Tribunals Act 1996 ("the Act") with the leave of the Appeal Tribunal or of the Court of Session. While the section did not prescribe any time limit for the lodging of an appeal, time limits were prescribed for such appeals in terms of Part III of the Rules of Court, and in particular Rules 41.18 and 41.20. No leave to appeal had been sought from the Respondents. The Respondents' decision was given on 22 February 1999 and the period of 42 days from the date of the decision prescribed in Rule of Court 41.20.1.(b) had passed without any appeal being lodged on behalf of the Petitioner. The Petitioner had failed to avail himself of the statutory mode of appeal provided under the Act. The statutory introduction of this appeal procedure by necessary implication excluded the jurisdiction of the courts where in the absence of special circumstances the Petitioner had not availed himself of the statutory remedy of appeal. Reference was made to British Railways Board v Glasgow Corporation 1976 S.C. 224. There were no special circumstances to justify judicial review of the Respondents' decision. The decision intimated on 22 February 1999 was a decision of the Respondents, as indeed was averred in the Petition itself. Reference was made to Rules 3, 31 and 33 of the Employment Appeal Tribunal Rules 1993 ("the Rules"). The determination that the grounds of appeal did not give the Respondents jurisdiction to entertain the appeal and the direction of the Judge that no further action should be taken on the appeal constituted a decision or order of the nature of that contemplated by section 37 of the Act. Indeed the Petition averred that the Respondents erred in law in refusing jurisdiction.

For the petitioner, counsel accepted that if there had been a statutory mode of appeal open to the Petitioner of which he had not availed himself, then the Petition was incompetent. He maintained however that the relevant determination was not one which constituted a decision or order for the purposes of section 37 of the Act. Having regard to the terms of section 28 of the Act, which directed the composition of an appeal tribunal, it could not be said that a direction of the Judge in terms of paragraph 3 of the Rules was a decision or order in terms of the Act. A direction fell to be distinguished from a decision or order. It was a procedural matter not directed to the substance of the tribunal's decision but was of a kind such as contemplated in Rule 24. In this case the direction had prevented the Petitioner from presenting to the Respondents an appeal which it had jurisdiction to entertain. Counsel accepted that on the facts found by the tribunal it was entitled to find in law that there had been a transfer of an undertaking from the sellers of the hotel to the Petitioner. He nevertheless maintained that questions (b) and (c) did raise questions of law. He explained that the Petitioner would not intend to proceed with question (d) which was a matter of fact for the tribunal.

Counsel then turned to the individual questions and grounds of appeal set out in the notice of appeal. The question of bias raised by question (a) was, he said, not a matter with which the tribunal had been concerned. It was a question of law. Reference was made to Harper of Oban (Engineering) Ltd. v Henderson 1989 S.L.T. 21: In re Pinochet Ugarte (No.2) 1999 2 WLR 272: Regina v Gough 1993 AC 646: Free Church of Scotland v Macrae 13 S.L.T. 77. The test to be applied was whether there had been a real danger that the Chairman was biased in favour of the applicant or at least that the links with her were such as to give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that he might have been so biased. Before reaching any determination on the matter of jurisdiction, it would have proper for the question to have been argued before the appeal tribunal or at least for the Petitioner to have been heard on the matter so that if necessary with the benefit of a report from the chairman of the tribunal, the Respondents were in a position after the facts were fully before it, then to determine whether or not the application should be re-heard before a differently constituted tribunal.

Question (b) was a matter of law since on the facts as found by the tribunal it could not be said that any agreement had been reached between the applicant and the Petitioner as to her being continued in employment after she had resigned from it prior to the hotel being taken over by the Petitioner as evidenced by the letter written by her to her former employer. Under reference to Muirhead & Turnbull v Dickson 7 F 686 and Chitty on Contract (27th ed) para.12.04 counsel submitted that the letter fell to be read as a commercial contract and that construed as such, it was a letter of resignation on the face of it. That being so, the tribunal erred in law in dismissing it as having a different meaning. It followed that in terms of the 1981 Regulations the applicant had already resigned before the Petitioner took over the hotel business and that her prior service did not count. Reference was made to Secretary of State v Spence 1986 I.C.R. 181. In the circumstances the tribunal's error in law in respect of question (b) had vitiated its decision as to the effect of the 1981 Regulations as set out in question (c). Accordingly declarator should be pronounced in the terms sought.

For the Respondents it was submitted that the Petitioner's arguments did not properly address the terms of the Rules which allowed for the Registrar, or any officer of the appeal tribunal authorised by the President to act on behalf of the Registrar (Rule 2) and to act for the appeal tribunal in terms of Rule 3. In terms of the Rule 2 the appeal tribunal included the Registrar acting on its behalf. The letter of 22 February 1999 was sent under the hand of the Deputy Registrar who was in terms of the Rules authorised to act on behalf of the Registrar. It contained a direction of the Judge in terms of Rule 3(6) which disposed of the appeal. It was not a direction of the kind contemplated by Rule 24 (1) which was simply concerned with interlocutory or procedural matters which would not be susceptible to an appeal to a higher court. Indeed these matters were of a kind which could be reviewed by the appeal tribunal at a later stage in the proceedings in terms of Rule 33, whether of its own motion or on application by a party. They therefore did not have the quality of finality which was possessed by a direction under Rule 3(6) as enabling one party to enforce an order against the other, in this case the order of the tribunal awarding compensation. It was therefore a decision susceptible to statutory appeal.

As to the grounds of appeal related to questions (b) and (c), these turned wholly on the evidence reviewed by the tribunal and the facts found from that review. It was suggested that the tribunal could not go behind the letter. But evidence had been led about the matter from both the applicant and her then employer as to the meaning which they attributed to the letter. Before the matter could properly be described as a point of law, it was necessary that the appellant should demonstrate that the tribunal had misdirected itself in law or misunderstood the law or misapplied the law, alternatively that having properly directed themselves in law, their decision was perverse in the sense that there was no evidence to support a particular finding of fact or to support their conclusion. In the latter case the appellate court must apply the concept with care to see that it was not used to reverse decisions of the tribunal because the appellate court disagreed with its conclusions of fact. Reference was made to British Telecommunications plc v Sheridan 1990 IRLR 27. The Employment Tribunal had heard and considered the evidence of the applicant, of her employer at the time to whom the letter was addressed and of the Petitioner. In doing so they had formed a view as to the credibility and reliability of the evidence. At pages 5 and 6 of their decision they had concluded that the letter was not a letter of resignation in the circumstances in which it was written and held that the applicant had not been dismissed nor had she resigned prior to or at the time of the transfer of the hotel to the Petitioner. They noted that the Petitioner was not aware of the existence of the letter at the time of transfer and that he continued to employ the applicant at the hotel and did not give her a new contract of employment. They took account of the terms of the missives for the sale of the hotel but remained of the view that since she had not been dismissed nor had she resigned, the applicant's contract of employment automatically transferred to the Petitioner. Accordingly she had continuity of employment from the date when her employment with the seller of the hotel began. In the course of their decision the tribunal expressed the view that whereas they found the evidence of the applicant credible and reliable, they found that of the Petitioner thoroughly unconvincing, not credible and wholly unreliable on the matter of his employment of the applicant and of her dismissal. The tribunal were fully entitled to consider the terms of the letter in the context of the factual background to its writing. Reference was made to Mannai Ltd. v Eagle Star Life Assurance Co. Ltd. 1997 AC 749 and in particular to the speeches of Lord Steyn and Lord Hoffman. There had been no misdirection, misunderstanding or misapplication of the law in the tribunal's determination of the facts. The decision was fully supported by the facts found and there was no fact found which was not supported by evidence.

As to question (a), there had been a decision of the appeal tribunal on the matter. Even if it could be regarded as a decision governed by Rule 24 so that the appeal tribunal had power to review its decision in the matter and in that respect could act as a court of first instance, any application to it to exercise such power required to be made within 14 days of the order which it was sought to review. It was no longer competent for the appeal tribunal to entertain such an application. Accordingly this ground of appeal was also misconceived. Counsel observed that in any event the Petition was irrelevant and lacking in specification. No specification was given as to which of the grounds set out in the application to the appeal tribunal were to be founded on, let alone which raised proper questions of law. In these circumstances there was nothing upon which to found the declarator sought in the Petition. The Petition accordingly fell to be dismissed either as incompetent or at least as irrelevant and lacking in specification.

In my opinion, the starting point must be to consider what is the extent of the statutory appeal procedure. Section 21 of the Act sets out the jurisdiction of an appeal tribunal. This is confined to any question of law "arising from any decision of, or arising in any proceedings before an industrial tribunal" under certain specified statutes. Section 35 of the Act sets out the powers of an appeal tribunal "for the purpose of disposing of an appeal". Section 35(3) provides that any decision or award of an appeal tribunal has the same effect and may be enforced in the same manner as a decision or award of the body or officer from whom the appeal is brought. Section 37 provides that subject to subsection (3) "an appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with the leave of the Appeal Tribunal or of the relevant appeal court", which in the case of proceedings in Scotland, is the Court of Session. Where an appeal tribunal in terms of the Rules is charged with determining whether on the face of a notice of appeal served on it in terms of Rule 3(1) the grounds of appeal give it jurisdiction, and where following the procedure laid down in Rule 3 (3) and (6) it determines that the grounds of appeal do not give it jurisdiction and that no further action will be taken on the appeal, that is prima facie a decision on a question of law. But, in my opinion, it is not a decision or order disposing of the appeal in the sense of section 37 since it is not a decision that is taken after the appeal tribunal has assumed jurisdiction with a view to determining any questions of law arising from the tribunal's decision, let alone one arising in the proceedings before the tribunal. Rather the appeal tribunal has held that it has no jurisdiction and thus cannot take any steps to dispose of an appeal by use of its powers. This conclusion is, in my opinion, consistent with the underlying purpose for which the powers given by section 35 are to be used. These allow an appeal tribunal to exercise any of the powers of the body or officer from whom the appeal is brought. But by holding that they have no jurisdiction, they are not exercising any such powers. Nor are they making a decision or award which has the "same effect" or "may be enforced in the same manner" as that of the tribunal. Their decision that they have no jurisdiction leaves the award of the tribunal unaffected and enforceable. The phrase "any decision or order" in section 37 does not do more than reflect the fact that any "award" made by an appeal tribunal as that word is used in section 35 may in certain circumstances be the subject of an order in terms of section 36(1) or (2). This conclusion also seems to me to accord with the provisions of section 37(3) as read with section 33(4) in reference to a person who is the subject of a restriction of proceedings order. A decision of an appeal tribunal refusing leave for the institution of proceedings by such a person before the appeal tribunal is not within the ambit of an appeal on a question of law in terms of section 37(1). The grounds upon which such a decision may proceed are that there are no reasonable grounds for the proceedings. That must include a determination that the grounds stated did not give the appeal tribunal jurisdiction. In these circumstances I do not consider that the submission for the Respondents on the competency of the Petition to be well-founded and I reject it.

That leaves the question of the relevancy of the averments in the Petition. In order to demonstrate that there is ground for review of the Respondents' decision, the Petitioner requires to demonstrate that the Respondents have erred in law in the Wednesbury sense in exercising the discretion granted to it in terms of the Rules and in particular Rule 3. In this matter it is proper to have at the forefront of any consideration the fact that the grounds of appeal and the questions of law said to arise are of two distinct categories. The allegation of bias is an attack upon the propriety of the tribunal, as then constituted, hearing the original application. It is not concerned with any questions which arise out of the terms of its decision. The grounds of appeal directed at the decision itself are separate. They are derived from consideration of the terms of the decision and the reasons given for it.

In my opinion, there is no merit in those grounds of appeal which are directed at the decision of the industrial tribunal itself. These grounds of appeal and the related questions are said to raise questions of law. I agree with the submissions for the Respondents on this matter which were to the effect that when regard is had to the tribunal's decision, it is impossible to distinguish any matters of law upon which it misdirected itself or any conclusions which it reached which were not supported by evidence accepted by it as credible and reliable. It was said that the letter passing between the applicant and the seller of the hotel, her employer at the time, was a letter tendering the applicant's resignation. But the tribunal were fully entitled to have regard to the circumstances in which it came to be written in determining what was its meaning. It was not a contract of any kind and certainly was not one to which the Petitioner was party or indeed one of which he had any prior knowledge. Indeed the tribunal found as a fact that the Petitioner treated with the applicant prior to the transfer of the hotel undertaking and while she was still an employee of the then hotel owner, on the basis that she was to continue in employment with him after the transfer. The tribunal found both the applicant and her then employer to be credible and reliable on the matter. Nothing in the case law referred to by counsel for the Petitioner appeared to me to be in point. The letter was not a commercial contract. As Lord Hoffman observed in the Mannai Ltd. case: "It is people who use words to refer to things". There was no doubt between the writer of the letter and the receiver of the letter as to the purpose and meaning of its terms. The tribunal were thus fully entitled to hold that it was not a letter of resignation as a matter of fact and that the applicant had decided to continue her employment at the hotel. Having done so, their conclusion in law, namely that the applicant was continuously employed from the commencement of her employment with her original employer and that she continued in that employment on the same terms and conditions with the Petitioner, was unassailable. It is also to be borne in mind that in considering the matter of her continued employment with the Petitioner, the tribunal set out clearly and cogently their reasons for finding the evidence of the Petitioner as unconvincing, not credible and wholly unreliable. That was a matter which was entirely within the province of the tribunal. Accordingly the second question, going to the question of alleged error in the application of the provisions of the 1981 Regulations arose from the same matters of fact as those which concerned the letter, as the related grounds of appeal make clear. Accordingly the Deputy Registrar, and the judge to whom the matter was referred, were fully entitled to conclude that neither question (b) or (c) raised a question of law within the meaning of section 21 of the Act. The final question of law raised in the notice of appeal is no longer insisted in and accordingly the Petitioner does not now claim that this ground gave the appeal tribunal jurisdiction.

That only leaves the first question of law, question (a), for consideration. This was not a matter which arose from the terms of the tribunal's decision. It concerned a state of fact and the application of a principle of law with which the tribunal was not concerned when undertaking to hear the application before them and in reaching their decision. I find it difficult to follow the reasoning by which the decision that this ground of appeal did not raise a sustainable point of law and so give the appeal tribunal jurisdiction, was reached. If the appeal tribunal did not consider that it had jurisdiction to consider such a matter, which is undoubtedly a matter of mixed fact and law, then there was no need for the judge to inquire when it was that the Petitioner first became aware of the matter. It was not held to be incompetent to serve a notice of appeal in the form and in the terms in which the notice of 21 December 1998 was served upon the Appeal Tribunal. No such suggestion was made in submission before this court. The notice of appeal was treated as the institution of an appeal by the Deputy Registrar and by the judge. The letter of 22 February 1999 covers all the grounds of appeal without distinction. In terms of section 35 of the Act an appeal tribunal may exercise any of the powers of the body from whom the appeal was brought and may further remit the case back to that body. It appeared to be suggested for the Respondents that if this ground truly raised a question of law, this was a matter which could and should have been dealt with under the provision in the Rule 33 which entitled the appeal tribunal to review any order made by it upon an application made within 14 days of the date of the order. I do not consider that this Rule is applicable. The matter of an appeal from notification that the notice of appeal does not give the Appeal Tribunal jurisdiction to entertain the appeal, is contained within Rule 3 itself. My concern is that in the present case it appears that the appeal tribunal did consider that it might have jurisdiction to deal with this ground of appeal, witness the letter to the Petitioner's agents seeking further information. In my opinion, the question of bias was undoubtedly a matter with which the appeal tribunal was fully entitled to concern itself. Nothing in the letter of 22 February 1999 gives any reasons as to why it was considered that on this question the notice of appeal did not give the appeal tribunal jurisdiction. The judge is reported in the letter as having expressed the view that the tribunal had applied the correct tests, that there were no sustainable points of law and according no further action should be taken in the appeal. The difficulty is that it is impossible to determine what if any inquiry was made into the allegation of bias apart from that made of the Petitioner. In the Harper of Oban case the court was furnished with and considered a statement from the justice whose conduct was in issue. If the Petitioner did not in fact know of the material which gives rise to his allegation of bias, until after the hearing of the application and the determination of the tribunal, there was no way in which the matter could have been raised by him and dealt with at the time of the hearing of the application before the tribunal in the absence of any declaration of interest by the chairman at the start of the hearing. There can be no doubt that any chairman of an industrial tribunal is under a duty to declare any interest which might disable him from so acting. If an appellant makes such an allegation and demonstrates that the point could not have been timeously raised before the relevant tribunal, then if by notice of appeal such an allegation of bias is brought to the attention of the appeal tribunal, there is no statutory bar to its consideration of the allegation to determine whether the allegation is well-founded in fact and that to the extent of offending

Counsel for the Respondents was critical of the averments in the Petition in that they did not incorporate the grounds set out in the notice of appeal to which the decision of the appeal tribunal was directed. However these matters were contained within the productions to which reference was made by both parties. No prejudice was suffered by the Respondents by the absence of more specific averments in the Petition. While I consider that the submissions for the Respondents were well founded in their attack upon the relevancy of the grounds of appeal other than that related to the allegation of bias, I am satisfied that the Petitioner has succeeded in showing that the Respondents erred in law in refusing to hear the Petitioner's appeal on the basis that there was no point of law raised in the Petitioner's grounds of appeal such as to give the Respondents as an appeal tribunal jurisdiction to hear the appeal.

I shall therefore repel the whole pleas-in-law for the Respondents, sustain Petitioner's plea-in-law to the extent of granting declarator that the Respondents have jurisdiction to entertain the first ground of appeal in relation to the allegation of bias on the part of the chairman of the industrial tribunal and will remit back to the appeal tribunal to proceed as accords.

 

 


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