Fair Employment Tribunal Northern Ireland Decisions

 


FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 192/04FET;

1396/04

CLAIMANT: Bernard McCorry

RESPONDENT: Department for Regional Development

Constitution of Tribunal:

Chairman: Ms Crooke

Members: Mrs G Savage

Mr R Margrain

Appearances:

The claimant was represented by himself.

The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by Departmental Solicitor's Office.

DECISION ON AN APPLICATION FOR REVIEW

It is the unanimous decision of the Tribunal that the claimant's application for review of the decision issued on 17 July 2007 is hereby dismissed as there is no reasonable prospect of the decision being varied or revoked.

THE RELEVANT LAW

The relevant law is contained in Rule 30 and Rule 31 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.

1. The claimant's application for review was made by letter dated 3 August 2007. This was outside the 14 day time limit set out in Rule 31 (1) but the time period of this rule was extended by the chairman considering, in the light of the difficulties that the claimant has, that it was just and equitable to do so. The text of this application by the claimant is appended hereto marked Appendix 1.
2. The application stated that the interests of justice required that the decision be reviewed.
3. Firstly the claimant set out five numbered grounds as the basis for this contention. He also elaborated upon these before the Tribunal.
4. The interests of justice requiring review ground is not one which confers a limitless discretion upon the Tribunal. This requires some kind of procedural mishap to have happened or new events occurring after the hearing which undermine the decision.
5. We do not propose to rehearse in full the contentions made by the claimant as we consider that largely they constitute a critique of why the claimant disagrees with the decision of the Tribunal. However, in relation to the numbered points in the application the Tribunal states as follows:-

(1) The mere fact that the claimant is dissatisfied with the findings of the Tribunal in respect of the involvement of Mr McClelland in and around writing a letter dictated by the claimant is not a matter for review. The contentions made by the claimant did not disclose any procedural mishap or new intervening acts to undermining the decision. The Tribunal accepts Mr Coll's submission that even if the Tribunal were wrong in the findings made about Mr McClelland, this would have no effect on the central question in the case which was whether or not the claimant was subjected to religious discrimination in being selected for transfer. It had never been part of the case of the claimant that Mr McClelland had discriminated against the claimant. Under this ground the claimant tried to bring in new evidence which had not been brought out at the original hearing. As the claimant did not purport to regard this as evidence coming within the category set out at Rule 30 (2) (d) the Tribunal ruled that this evidence was inadmissible.

(2) This point was never made at the original hearing and indeed there was nothing to stop the claimant making such a point as the issues around the grievance procedure were very fully ventilated. The Tribunal does not accept the contention that "a written letter must initiate the grievance procedure" as the grievance procedure is set out in the hearing bundle and it does not contain this requirement.

(3) Why the claimant went to the Equality Commission and how he felt, are in no way appropriate points upon which to base an application for review of a decision.

(4) The question of whether Mr Wright knew that the claimant has dyslexia was one that was very fully dealt with at the hearing in this matter. Again, no procedural mishap was disclosed and the claimant did not bring forward any new evidence on this point. Consequently nothing gives rise to a review in connection with the alleged knowledge or otherwise of Mr Wright of the claimant's situation.

(5) The claimant's dissatisfaction under this heading centres round the fact that the Tribunal preferred the evidence given by the respondent to that given by the claimant and his witnesses. Again this is not an appropriate point for a review. If the claimant felt the decision was perverse on the evidence, there were other remedies open to him. The Tribunal did not accept that the witnesses for the claimant were consistent in what they said. These witnesses contradicted themselves in what they said themselves and also contradicted each other. Hence the evidence of the respondent was preferred. The Tribunal does not consider the failure of Mr Mulholland to sign his witness statement can be regarded as a suitable ground for review of the decision. Mr Mulholland took seriously ill during the course of this case, the hearing of which, for logistical, reasons stretched over some months. The Tribunal accepts Mr Coll's submission that it would have been open to the claimant to make some point about this during the course of the hearing and he failed to do so. Again, this point does not go to the kernel of the issue which was whether or not the claimant was discriminated against on the grounds of his religion, in or around his selection for transfer.

6. The claimant also made a number of additional comments as follows:-

"Every obstacle was put in my way to prevent me from taking this case". The Tribunal does not accept that this is the case. The claimant contended that the respondent never thought "it would get this far". This may or may not be the case. However, the claimant was given a very full hearing of all his issues and appropriate assistance was rendered to him in the hearing of the case. The fact remains that the claimant did take his case and prosecuted through to decision and review. In any case, this is not an appropriate ground for review.

7. The question of payment of witnesses. The claimant alleged that his witnesses were required to take annual leave or unpaid leave if they wished to attend the hearing. Whether this may or may not be the case, once again the witnesses did attend and did give their evidence and the claimant and his witnesses were all given a very full hearing. If there was a procedural mishap involved in the presentation of these witnesses and their hearing by the Tribunal, it was not identified by the claimant.
8. The last alleged ground upon which the interests of justice required a review of the decision was a criticism by the claimant of the manner in which the hearing was chaired. Mr Coll professed himself astonished given that every accommodation had been given to the claimant in the presentation of his case. The main criticism was that the chairman did not ask questions whereas other chairmen viewed by the claimant in the run-up to presentation of his case did so. However, the claimant was unable to identify what other questions allegedly should have been asked. This being the case, we do not consider that any question of procedural mishap arises under this heading. Every case involves different parties, different issues and different evidence and no two cases will run in exactly the same manner.
9. For all of the above reasons, the Tribunal unanimously consider that the application for a review made by the claimant has no reasonable prospect of success and is therefore dismissed.

Chairman:

Date and place of hearing: 5 October 2007, Belfast.

Date decision recorded in register and issued to parties: