Title: McCafferty v Department of Finance and Pers... [2008] NIIT 1611_07IT (19/09/2008)<BR>
Author: irtusetup
Last saved by: joe.ury
Company: DED

THE INDUSTRIAL TRIBUNALS 

CASE REF:	1611/07

CLAIMANT:	Elayne Mc McCafferty		

RESPONDENT:	Department of Finance and Personnel	

DECISION

The tribunal refuses to state a case for the Court of Appeal on the ground that the application does not have a reasonable prospect of success. 

Constitution of Tribunal:

Chairman:		Mrs Watson

Members:		Mr Hunter
Mr McKnight

Appearances:

The claimant was represented by Mr Grainger, Barrister-at-Law, instructed by Kelly & Corr, Solicitors.

The respondent was represented by Mr Potter, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

1.	On behalf of the claimant, her solicitor wrote to the tribunal on 18 June 2008 requisitioning that a case be stated for the Opinion of the Court of Appeal on eight questions of law arising from the decision of the tribunal dated 9 May 2008 that the claimant had not been unfairly dismissed contrary to Article 130(a) of the Employment Rights (Northern Ireland) Order 1996 (as amended). 

2.	The tribunal was aware that the questions of law had been drafted before the claimant’s solicitor had received the papers in the case from her trade union official who had represented her at the hearing of the case.  Before coming off record for the claimant, her former representative had requested a review of the decision and a hearing of that application had been scheduled for 2 July 2008.  The review was requested on the basis that the tribunal had arrived at its decision as a result of a misunderstanding or mistake of a material element of the evidence. 

3.	The decision of 9 May 2008 was confirmed following the review hearing on the ground that any misunderstanding or mistake relating to evidence given at the original hearing was on the part of the claimant and/or her representative and not the tribunal. 

4.	Following the issue of the review decision, the tribunal wrote to the claimant’s solicitor asking whether any revision of the questions in the requisition was anticipated following the review decision.  Both parties’ representatives requested a meeting with the tribunal chairman to discuss the issues.  This meeting took place on 2 September 2008. 

5.	Having given consideration to the matters discussed at that meeting and the content of both decisions in this case, the tribunal refuses to exercise its discretion to state a case for the Opinion of the Court of Appeal on the ground that there is no arguable case for setting aside the original decision. 

6.	The tribunal noted that the claimant’s present representatives were not aware of the full content of the oral and documentary evidence given at the original hearing by the respondent’s Managing Absence staff of their efforts to ensure the claimant’s return to work.  In addition, both parties’ representatives had confirmed during the hearing that the tribunal was only being asked to consider whether there had been compliance with the statutory dispute regulations.  Subsequent to lodging her originating claim to the tribunal, the claimant had been awarded compensation of over £23,000 by the Northern Ireland Civil Service Appeal Board after finding that she had been unfairly dismissed by the respondent. 

7.	The points of law raised in the requisition related to the tribunal’s finding that the claimant’s dismissal had complied with the requirements of the statutory dispute requirements of Article 130(A) of the Employment Rights (Northern Ireland) Order 1996 (as amended).  The tribunal is satisfied that it set out the proper legal and factual basis for its decision.  It identified the correct test to be applied in such cases and arrived at a decision based on findings of fact following evidence which had not been challenged by the claimant or her representative.  In all the circumstances of this case, the tribunal is not satisfied that the challenge to its decision meets the test established by Carswell J in Limavady Borough Council’s Application [1993] 5 NIJB 43 (applied by Kerr J in University of Ulster’s Application (1999) NIJB 61 and  Weatherup J in Christina McAleer’s Application [2008} NIQB 31) that the claimant must “establish facts on which an arguable case for setting aside the decision can be founded.”

8.	The tribunal refuses to state a case for the Opinion of the Court of Appeal unless and until it is ordered to do so.

Chairman:

	

Date decision recorded in register and issued to parties:

01611-07 IT