Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2004] NIFET 16_3, [2004] NIFET 16_03

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 16/03 FET

129/03

APPLICANT: Cathrine Mary Dympha McCormack

RESPONDENTS: 1. Ronnie Milligan

2. John Heron

3. Jackie Fitzsimon

4. Martin McGuinness

5. Jane Kennedy

DECISION ON APPLICATION FOR REVIEW

The unanimous decision of the Tribunal is that the application for a review by the applicant is refused.

Appearances:

The applicant was unrepresented.

The first, second and third-named respondents were represented by Mr M Brown, Solicitor, SEELB.

The fourth and fifth-named respondents were represented by Mr J Sullivan, Solicitor, The Department Solicitor's Office.

Reasons

By a decision on a preliminary issue recorded and issued to the parties on 13 November 2003 the Tribunal dismissed the applicant's claim for discrimination on grounds of religious and/or political opinion.

The unanimous decision of the Tribunal was that:-

(a) Martin McGuinness and Jane Kennedy are not proper respondents and are therefore dismissed from the proceedings.

(b) The applicant's complaint that Article 101 of the Education & Libraries (Northern Ireland) Order 1986 was not exercised by the Department of Education, is misconceived, insofar as the Tribunal has no jurisdiction to hear and determine the complaint.

(c) The applicant's complaints about Cregagh Primary School's handling of various issues concerning the applicant's children are misconceived, insofar as the Tribunal has no jurisdiction to hear and determine the complaints.

(d) The applicant's complaint that she was discriminated against on grounds of religion/politics in her non-appointment to the position of clerk/typist at Cregagh Primary School is a complaint which the Tribunal would have jurisdiction to hear and determine provided that the time limits specified by Article 46 of the Fair Employment & Treatment (Northern Ireland) Order 1998 have been complied with.

The Tribunal decided that the time limits had not been complied with, and it would not be just and equitable to extend the time.

By letter dated 17 November 2003 the applicant challenged the accuracy of the decision. The Tribunal treated the correspondence as an application for a review. A hearing was arranged to consider that application.

At the hearing, the applicant indicated that she wished to rely on Rule 11(d) and (e) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2004.

Rules 11(d) states:-

"new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of hearing."

Rule 11(e) states:-

"the interests of justice require such a review."

New evidence has become available since the conclusion of the hearing to which the decision relates provided that its existence could not have been reasonably known of or foreseen at the time of the hearing.

The Tribunal permitted the applicant to make whatever representations she wished, to support the grounds of her application. She told the Tribunal about difficulties she had had with the school concerning requests for information, the treatment of her children, and the treatment of herself since 1994. She further told the Tribunal about threats which she had received following the presentation of her originating application, and about 'whispers' which she perceived to be threats prior to lodging her claim.

The applicant also referred to psychiatric care which she had received, and continued to receive up to the date of the review hearing. She reiterated a number of points which had been made at the preliminary hearing concerning the reasons why her originating application was lodged out of time. In particular, she explained the steps which she had taken to resolve her complaints internally. The Tribunal had already considered this evidence before reaching its decision dated 13 November 2003.

The power of review is not to enable a party who has been unsuccessful to have a second opportunity to persuade the Tribunal to decide in his/her favour on the same facts. The power may only be exercised on one of the grounds set out in Rule 11.

In this case, the Tribunal must be satisfied that the decision was reached, in the absence of evidence the existence of which "could not have been reasonably known of or foreseen at time of the hearing". We are not satisfied that the applicant has established grounds on which we could review the decision under Rule 11(d). The only "new evidence", in our view, is that the applicant has been under the care of a psychiatrist. It is not clear when the applicant was first referred to a psychiatrist. However, insofar as it is "new evidence", the Tribunal is not satisfied that it was evidence which could "not have been reasonably known of or foreseen at the time of the hearing".

The interests of justice require a review

It is clear from the authorities that this ground is narrowly applied in practice, although it may appear to be all embracing. The Tribunal must have regard not just to the interests of the party seeking the review, but also to the interests of the other parties and to the public interest that there should, as far as possible, be finality of litigation. (Flint v Eastern Electricity Board [1975] IRLR 277.)

Harvey on Industrial Relations and Employment Law states at Volume 5, Division T, that cases brought under ground (e) only fall into two broad categories: those in which there has been a "procedural mishap" of one sort of another and those in which the Tribunal's decision has been undermined by events occurring shortly thereafter.

We are satisfied that there has been no procedural mishap in the conduct of these proceedings. Furthermore, it has not been suggested that any events occurred after the Tribunal issued its decision which would undermine that decision.

It is also clear from the authorities that a party whose application under ground (d), has been refused will only be successful under ground (e) if there is "some special additional circumstance" or "some mitigating factor" to lead to the conclusion that justice does in fact require a review. Having considered the applicant's evidence, we are satisfied that the applicant's reasons for lodging her application out of time were fully considered and taken into account before the Tribunal reached its decision of 13 November 2003.

For those reasons, we refuse the application for review.

Chairman:

Date and place of hearing: 1 October 2004, Belfast