Young v Nortel Networks  (Review of Decision)  (11 December 2003)

INDUSTRIAL TRIBUNALS

CASE REF: 2962/01

APPLICANT:	John Young

RESPONDENT:	Nortel Networks

DECISION ON APPLICATION FOR REVIEW

The tribunal dismisses the applicant’s application for a review of the tribunal’s decision.

Appearances:

The applicant appeared in person.

The respondent was represented by Mr P Bloch, Engineering Employers’ Federation.

1.	On 28 October 2002, at Belfast, an application for breach of contract and unlawful deduction from wages against the respondent was listed for hearing.

2.	Before conclusion of the hearing and following discussion between the parties Mr Bloch stated in open tribunal:-

“The respondent will honour back pay, if due.  If the applicant has not received the benefit of a pay deal he will receive it.  If it impacts on his pension he will receive it.  For the purpose of the calculation of redundancy the applicant will be treated equally with the equals in the same redundancy i.e. quarter 2 2001 redundancies”.

The applicant then stated to the tribunal:-

“I have considered the situation and am withdrawing my claims”.

Mr Bloch replied:-

“I have no objection and no other application”.

3.	The tribunal’s decision of dismissal following a withdrawal on consent was issued on 30 October 2002.

4.	The applicant wrote to the Office of Industrial Tribunals and the Fair Employment Tribunal on 16 December 2002 seeking a complete record of the proceedings.  The Office of Industrial Tribunals and the Fair Employment Tribunal replied by letter of 30 January 2003 setting out the statements of the parties as recorded at paragraph 2 above.

5.	On 7 October 2003 the applicant contacted the Office of the Industrial Tribunals and the Fair Employment Tribunal because he believed that the respondent had not honoured its agreement with him.

6.	On 7 November 2003 the Office of Industrial Tribunals and the Fair Employment Tribunal wrote to the parties to advise them that the matter would be re-listed before the tribunal to consider extending time for an application for a review and an application for a review in the interests of justice.

7.	The matter was listed on 11 December 2003 at Belfast to consider the applicant’s application for a review.

8.	On 11 December 2003 one of the panel members was not in attendance.  The applicant consented to the application proceeding before a two-person panel and Mr Bloch agreed.  Accordingly the tribunal agreed to hear the matter.

9.	At the outset Mr Bloch made an application that even if time were extended for a review of the tribunal’s decision in the interests of justice the application had no prospect of success.

In support of his contention Mr Bloch argued that:-

(a)	The tribunal had not exercised its discretion in the decision as there was simply a dismissal following the applicant’s withdrawal of his application.

(b)	That the two particular limbs of the interests of justice ground as established by case law did not apply in this application.

(c)	That it was the respondent’s policy not to pay back pay to employees who had ceased to be employed before the pay deal was concluded or to retrospectively amend pensions or redundancy payments already made, in the light of the higher rate of pay.  The applicant did not have a term in his contract of employment requiring the respondent so to do.

(d)	The respondent discharged its undertaking to the applicant and even if it had not done so it does not amount to an event occurring after the decision which has undermined the decision and the applicant has a remedy in another forum.

(e)	As the applicant withdrew his application without the tribunal making any findings there is nothing to review.

10.	The applicant in support of his application argued:-

(a)	At the time of the hearing he had other family concerns which influenced his decision to withdraw his application.

(b)	That he feared costs might be awarded against him.

(c)	The respondent did not pay him any further redundancy, pension or back pay and therefore did not honour its undertaking to him.

(d)	That he was no familiar with the law.

(e)	That a number of factual matters relating to the merits of his case supported his contentions.

11.	The tribunal having considered the matter found that even if time were extended to bring an application for a review the applicant could not satisfy the requirements for a review on the ground that the interests of justice require such a review.  In so concluding it took into account the following matters:-

(a)	The applicant’s substantive arguments related to the merits of his case but the tribunal had not made any determinations because the applicant withdrew his application before evidence was concluded.

(b)	The applicant believed that the respondent had not honoured the agreement it made with him on 28 October 2002 which the respondent disputed.

(c)	This application for a review in the interests of justice does not fall within the two broad categories of case set out in Harvey Volume 5 T paragraph [1139].

(d)	That the tribunal is not persuaded that an argument is open to the applicant that the dishonouring of the agreement by the respondent amounts to an event occurring after the decision which undermines the decision because:-

(i)	The applicant’s understanding of the agreement of 28 October 2002 is not correct in that it does not commit the respondent to any further payments to him.

(ii)	That even if his understanding were correct a review application is not the proper way to enforce his understanding.

(iii)	That the applicant’s argument is based on his belief of the merits of his claim.  As he withdrew his claim before adjudication that argument cannot be considered as no determinations or findings were made by the tribunal.

12.	The arguments put forward by the applicant do not satisfy the requirements of the interests of justice ground for a review.

Accordingly the tribunal is satisfied that the applicant could not satisfy the requirements of an application for a review on the grounds of the interests of justice and it does not need therefore to consider the application to extend time for making an application for a review.

13.	The applicant’s application for a review is therefore dismissed.

Chairman:

Date and place of hearing: 11 December 2003, Belfast.

Date decision recorded in register and issued to parties: