Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REF: 00452/98FET

APPLICANT: Anna Mary McFetridge

RESPONDENTS: 1. Grampian Country Foods Limited

2. Gary Gallagher

3. Anne Marie McCormick

4. Lynda Devlin

DECISION ON APPLICATION FOR REVIEW

In exercise of the power conferred on me by Rule 10(3) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 1989 I hereby refuse this application for a review because in my opinion it has no reasonable prospect of success..

REASONS

The applicant seeks a review of the Tribunal's decision issued on 4 September 2002 dismissing her complaint of unlawful discrimination on the grounds of both religious belief and political opinion. Her request for a review appears to be based on the grounds that new evidence has become available since the making of the decision and secondly that the interests of justice require such a review.

Rule 10 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 1989 provides:-

10.- (1) A tribunal shall have power to review and to revoke or vary by certificate under the chairman's hand any decision on the grounds that –

(a) the decision was wrongly made as a result of an error on the part of the staff of the Office of the Tribunals;

(b) a party did not receive notice of the proceedings leading to the decision;

(c) the decision was made in the absence of a party;

(d) new evidence has become available since the making of the decision provided that its existence could not have been reasonably known of or foreseen; or

(e) the interests of justice require such a review.

(2) An application for the purposes of paragraph (1) may be made at the hearing. If the application is not made at the hearing, such application shall be made to the Secretary at any time from the date of the hearing until 14 days after the date on which the decision was sent to the parties and must be in writing stating the grounds in full.

(3) An application for the purposes of paragraph (1) may be refused by the President or Vice-President or by the chairman of the tribunal which decided the case if in his opinion it has no reasonable prospect of success.

The new evidence on which the applicant appears to rely is evidence from Dr Hunter, a doctor whom she attended after the incidents of which she complained, Jim Young, a union representative, Jean Elliott and Breige O'Hagan who were fellow workers and Richard Currie who had been a factory manager.

In addition the applicant has produced a copy of a marriage certificate for Lynda Devlin one of the respondents which she maintains demonstrates that Ms Devlin did not tell the truth about her domestic situation at the tribunal hearing.

The applicant in the course of her evidence to the Tribunal at which she was represented by counsel and solicitor made several references to Dr Hunter, Jim Young, Jean Elliott and Breige O'Hagan. All of these witnesses together with Richard Currie could have been called upon to give evidence on her behalf but they were not. In the circumstances I do not accept that any of these persons have evidence to give which would not have been reasonably known of or foreseen at the time of the hearing. In addition the applicant told the tribunal at the hearing that she did not wish to call Jean Elliott in view of her health.

The applicant in her letters requesting this review disputed the following facts found by the tribunal:-

(a) "The flag was taken down in 1998".

The applicant in her letter maintained this occurred in 1996. However it was put to the applicant during the evidence and she agreed that this incident took place in 1998.

(b) "Ms Devlin and Mrs McCormick had been in the company's employment for less than one year".

The applicant in her letter points out that they had been contract workers for longer than this period. The tribunal was aware of this but the fact is that while they were contract workers they were not employed by the respondent. The tribunal accepted at all times that they had been working in the factory for longer than one year.

(c) "Lynda Devlin's marital status at the time of the applicant's complaint"

To this end the applicant provided a copy of a certificate of marriage between Lynda Devlin and Vincent Donnelly. However, as this marriage took place in September 1999 and the events about which the applicant complained took place in July 1998 the marriage of Lynda Devlin is not relevant to the facts found by the tribunal. In any event as was made clear in the Tribunal's decision the Tribunal did not find any of the parties who gave evidence to the Tribunal to be entirely credible.

The applicant also disputes other findings of the tribunal where it did not accept the version of events as given by the applicant. The Tribunal made its findings having considered all the evidence given, the credibility of the persons giving evidence and I do not accept that the purpose of a review is to alter findings of fact made by the Tribunal unless they are clearly wrong. In this regard I accept that the writing on the wall referred to "bad" oul bitch rather than "that" oul bitch and a certificate of correction has been issued accordingly.

With regard to the applicant's comment about an incident which occurred outside the hearing room, as the incident was not brought to the Tribunal's attention I cannot comment.

The applicant also queries questions put to her in cross-examination on behalf of some of the respondents. If her counsel considered that these were improper questions he could have objected at the time.

The applicant also suggests that the respondents were able to overrule the Tribunal at will with regard to the timing of the evidence and the procedure at the hearing. The Tribunal gave rulings throughout the hearing based on doing justice between all the parties involved and if the applicant was dissatisfied with any of those rulings they could have been challenged by her representative at the time.

In so far as any of the above matters are relied on by the applicant to ground a review on the basis that the interests of justice require such a review I do not believe that any of the matters listed above come within either of the situations on which a review on this ground would be successful.

It is well established that this ground is not a catch-all to enable a party to have a review simply because they are dissatisfied with the decision reached. A review on these grounds normally is based on either a procedural mishap or where the Tribunal's decision has been undermined by events occurring shortly thereafter. There is nothing in this application for review which appears to me to come within either of these categories.

For all the reasons set out above I refuse this application for a review of the tribunal's decision because I am satisfied that it has no reasonable prospect of success.

Chairman:

Date: