Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 319/03 FET

3914/03

334/03 FET

9195/03

APPLICANT: Robert Lewis

RESPONDENTS: 1. Denise Scullion

2. Estates Department

DECISION

The unanimous decision of the Tribunal is that in relation to Case Reference Nos: 319/03 FET and 3914/03, it would not be in the interests of justice to review the decision dismissing the application following its withdrawal.

In relation to Case Reference Nos: 334/03 and 9195/03, the claims contained therein are identical to the claim set out in Case Reference Nos: 319/03 FET and 3914/03. Accordingly the applicant is not permitted by law to proceed with those claims.

Appearances:

The applicant was unrepresented.

The respondents were represented by Mr Walls, L'Estrange Brett, Solicitors.

FACTS

1. Case Reference Numbers 319/03 FET and 3914/03

The applicant lodged an originating application on 31 July 2003. The complaint related to an unsuccessful job application, and treatment which the applicant had allegedly received from the first respondent. The applicant later confirmed in response to a letter from the Office of the Tribunals that his claim related to 'race, sex, gender and religion'.

2. On 8 March 2004, Mr Albert Mills, Regional Industrial Organiser with the Transport & General Workers Union sent a letter to the Office of the Tribunals informing the Office that the applicant wished to withdraw his complaint. A 'Withdrawal of Application' form was enclosed, signed by the applicant and dated 5 March 2004.
3. On 5 April 2004 a decision was made by a Chairman of the Industrial and Fair Employment Tribunal dismissing the application following its withdrawal without any objections from the respondent.
4. On 7 April 2004 the applicant wrote to the Office of the Tribunals in the following terms:-

"To whom it may concern,

I was forced to sign the withdrawal forms by Queen's University but since then they have reneged on their deal. I phoned your office to ask if I could cancel my signature, I was told yes, so long as I wrote in so this is my authority to cancel my signature and to re-establish my cases …".

5. By letter dated 19 April 2004, Mr Mills from the Transport & General Workers Union responded to the contents of the applicant's letter as follows:-

" … I refer to your correspondence … and would advise that the applicant at a meeting in my office signed a Withdrawal Form which I sent to your office on 8 March 2004. I would point out that Mr Lewis is not my client and I have never been on record as his representative in the above cases. Could you please send any future correspondence directly to the applicant".

6. The President of the Industrial and Fair Employment Tribunal directed that the applicant's letter dated 7 April 2004 be treated as an application for review.
7. At the hearing to consider the grounds of the application for review the Tribunal found the following facts proved on a balance of probabilities:-

(a) The applicant had been employed by The Queen's University of Belfast as a Permanent Relief Team Leader from 16 July 2001. The applicant described his job as a 'cleaning supervisor'.

(b) The applicant went on sick leave on 16 April 2003. He was paid statutory sick pay until 12 October 2003.

(c) In September 2003 the applicant was employed by Cape Industrial Services. He had decided that he would not return to his job at the University, but he did not wish to inform the University of his intentions, because he thought his claim for discrimination would be stronger if he remained an employee.

(d) Cape Industrial Services tendered for a contract with the University. In so doing, the company submitted a list of its employees. A member of staff spotted the applicant's name on the list. A letter was then sent by the University to Cape Industrial Services dated 20 February 2004, informing Cape that the University was concerned to see the applicant listed as an employee of that organisation, since he was currently an employee of the University and was on long term sick leave. Cape was asked to confirm the situation and to provide details of the applicant's employment history.

(e) Cape Industrial Services confirmed that the applicant had worked for them since 16 September 2003.

(f) The Tribunal accepts the respondent's evidence that Mr Hugh Lewsley, Trade Union representative within the University, approached the University's In-house Solicitor, Mr Spence, with a view to arranging a meeting with personnel to discuss the applicant's situation.

(g) A meeting took place with Mr Lewsley, Mr Spence and Ms Maguire from the Personnel Department. The Tribunal accepts Ms Maguire's evidence that Mr Lewsley raised the issue of the applicant working for Cape Industrial Services, whilst still employed by the University, and in particular whilst still in receipt of statutory sick pay.

(h) The Tribunal further accepts Ms Maguire's evidence, that Mr Lewsley suggested that a deal could be cut between the parties, whereby the applicant would withdraw his claims against the University and the University would not pursue him for the sick pay which he had improperly received.

(i) It was indicated by Ms Maguire that the matter would have to be discussed with the Director of Human Resources, but that the applicant would not be eligible for future employment with the University, nor would he be given references.

(j) The Tribunal accepts that an agreement was reached in the terms suggested by Mr Lewsley. The Tribunal is not satisfied that that agreement was entered into unwillingly by the applicant. The applicant was content that the effect of the agreement was that he was free to remain employed by Cape Industrial Services.

(k) By letter dated 12 March 2004, the University wrote to the applicant accepting the applicant's resignation with effect from 12 March, and confirming its intention not to claim back any sick pay 'on the understanding that [he] intended to withdraw his Industrial Tribunal cases'. It was pointed out to the applicant that acceptance of his resignation is as an alternative to summary dismissal for gross misconduct.

(l) Subsequently, Cape Industrial Services decided to dismiss the applicant because of his conduct in remaining an employee of the University, whilst accepting employment from Cape.

8. The Tribunal is satisfied that the reason the applicant sought to revoke his decision to withdraws his claims, is because his employment with Cape was terminated. Had Cape continued to employ him, the applicant would have been satisfied with the terms of the agreement he had reached with the University.
9. The Tribunal does not accept that The Queen's University 'forced' the applicant to sign a withdrawal of his claims. On the contrary, the impetus for the deal came from Mr Mills; on the applicant's behalf, so that he would not be required to pay back the sick pay which he had received.
10. Nor does the Tribunal accept that the University 'reneged on their deal' as alleged by the applicant in his letter of 7 April 2004. The applicant's grievance is that the consequence of what occurred was that he lost his employment with Cape.
11. In those circumstances, the Tribunal is not satisfied that there are grounds for reviewing the decision dismissing the applicant's claim, following its withdrawal by him.
12. Case Reference Numbers: 334/03; 9195/03

The applicant confirmed to the Tribunal that the originating applications in Case Reference Nos: 334/03 and 9195/03 relate to exactly the same complaints which are set out in Case Reference Nos: 319/03 FET and 3914/03 which were dismissed following withdrawal.

13. The legal doctrine of cause of action estoppel means that a decision of the Tribunal is binding between the parties so as to prevent them from litigating the same issues over again in future legal proceedings. Harvey on Industrial Relations and Employment Law states at Volume 5, part T, paragraph 1011 that "the rationale of this doctrine is that there must be finality of litigation".
14. Harvey also states that this doctrine relates to a formal dismissal by a tribunal of a claim on withdrawal by an applicant.
15. In the Tribunal's view, since we have decided that there are no grounds to review the Tribunal's decision to dismiss the application following withdrawal by the applicant, the applicant is prevented from litigating on the same issues in Case Reference Nos: 334/03 and 9195/03. Those application are therefore dismissed.

Chairman:

Date and place of hearing: 26 November 2004, Belfast

Date decision recorded in register and issued to parties: