Industrial Tribunals Northern Ireland Decisions

 


Shaw v McCoy (t/a Illuminaire) (Adjournment) [2002] NIIT 3185_01 (21 August 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 3185/01

APPLICANT: Stephen Shaw

RESPONDENT: Andrew McCoy T/A Illuminaire

DECISION

The unanimous decision of the industrial tribunal on an application by the respondent to review the decision issued on 6 March 2002 is that the said decision be revoked. The tribunal orders a re-hearing before the same tribunal. The parties now having reached agreement, it is therefore ordered that the matter be adjourned pending implementation of settlement.

Appearances:

The applicant was represented by Ms L Moran BL, instructed by Donald King & Co, Solicitors

The respondent, Mr Andrew McCoy, appeared in person

1. The hearing of the originating application in this matter took place on 1 February 2002. Written reasons for the decision were sent to the applicant and the respondent on 6 March 2002.

It was ordered by the tribunal that the respondent pay to the applicant the sum of £608.95 in respect of unauthorised deductions from his wages, and it was also ordered he should pay to the applicant the further sum of £33.40 in respect of a guarantee payment to which the latter was entitled.

The decision of the tribunal recorded that the respondent, Mr McCoy, had not entered an appearance, and that he had not been represented at the hearing.

2. (i) On 14 April 2002, following receipt of a copy of the tribunal's decision the respondent wrote to the Labour Relations Agency stating that he would like to "appeal" against the tribunal's decision. He continued "I can't see how this case was heard fairly if I was not requested to attend and that the statement I had made doesn't seem to have been taken into consideration". The LRA forwarded a copy of this letter to the Office of the Tribunals on 6 May 2002.

(ii) An examination of the case file disclosed that on 27 January 2002 the respondent had sent a notice of appearance to the Office of the Tribunals. This had included a written statement setting out his case. The notice of appearance was accompanied by a covering letter also dated 27 January 2002. These documents were not, however, brought to the attention of the Chairman of the Tribunals which heard the case.

(iii) In the light of this, on 24 May 2002, a Chairman of the Tribunals directed that the matter be listed for the hearing of an application for a review. The potential grounds of review are those set out at paragaphs 11(1)(b) and (e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996, namely that a party did not receive notice of the proceedings leading to the decision, and that the interests of justice required a review, respectively.

3. (i) At the hearing of the application for review the respondent stated that he did not receive notice of the hearing. This is the only ground on which a respondent who has not entered an appearance is entitled to make application for review (see: 1996 Rules, Rule 3(2)). The effect of Rule 5(2) when read in conjunction with Section 24 of the Interpretation Act (Northern Ireland) 1954 is that service of a document sent by post (as was the notice of hearing) is deemed to have been effected at the time at which the letter containing it would be delivered in the ordinary course of post, unless the contrary is proved. (These provisions, and other relevant provisions of the Rules, were explained to Mr McCoy).

(ii) The respondent has not satisfied us that he did not receive the notice of hearing for the following reasons:

(a) He received the originating application and a copy of the decision;

(b) He had not experienced any problems with the mail at his office address;

(c) Paperwork had clearly built up in his office. He conceded that the notice of hearing might well have been received, but misplaced in this accumulation of paperwork.

(d) The notice of appearance, accompanying statement, and covering letter are all dated 27 January 2002 and were received in the Office of the Tribunals on 30 January 2002. The hearing was on 1 February 2002. This is consistent with the respondent knowing the date of hearing and sending the notice appearance to the Tribunal for the hearing. The respondent said this was "co- incidental" but we do not accept that.

4. (i) However, it is open to an industrial tribunal to allow a respondent who has not entered an appearance to make an application for an extension of time for doing so, notwithstanding that a decision has been made by the tribunal, and has issued (see: St Mungo Trust v Colleano [1980] ICR 254). This was accepted by Ms Moran, for the applicant.

(ii) The tribunal has had regard to the reasons advanced by the respondent for failing to enter an appearance on time. It had always been his intention to defend the proceedings, but he was a small contractor, with 3 employees including himself. The originating application had been received at a particularly busy period, and he had neglected to deal with it. This was essentially the reason he had set out in the notice of appearance which had been sent to the tribunal on 27 January 2002.

(iii) The applicant accepts that he was dilatory in dealing with the notice of appearance, and it is clear to the tribunal that he put off dealing with it to the very last minute. It has to be said he was also somewhat tardy in dealing with the review. However, notwithstanding this, the tribunal is satisfied that had the notice of appearance been brought to the attention of the tribunal chairman at the hearing on 1 February 2002, the probability is that the tribunal, having regard to the reasons advanced for the delay, would have extended the time appointed for entering the notice of appearance. The respondent, albeit that he bears a major responsibility for his own predicament, did not have the opportunity of putting the merits of his case to the tribunal.

(iv) The tribunal therefore extends the time appointed for entering an appearance to the originating application to the date of the hearing of the application for a review.

(v) Normally, an issue as to costs would arise in such circumstances. However, the hearing for review was listed for 5 August 2002 and was adjourned because of the non-appearance of the applicant and his counsel (not Ms Moran) on that date. In these circumstances the tribunal indicated that it was minded to exercise its discretion so as not to award costs, and Ms Moran very fairly indicated that costs against the applicant would not now be appropriate.

5. (i) We refer to the history of this case, as set out at paragraph 2 above. As we have also stated (in the context of late entry of the notice of appearance) the merits of the applicant's case were not considered by the tribunal.

(ii) We are further satisfied that the respondent did intend to contest the proceedings, that he believed he had a defence to them (at least in part) and that he is not playing fast and loose with the tribunal in that he decided to ignore the original proceedings, and is now only seeking a review because an award (or bigger award than he expected) was made against him.

6. (i) The tribunal is satisfied that it is in the interests of justice that the decision issued on 6 March 2002 should be revoked. It orders a re-hearing before the tribunal.

(ii) Following a short break, the parties indicated that they had reached a settlement.

It is therefore now ordered that the hearing be adjourned pending implementation of a settlement agreed between the parties. Upon implementation the application will be withdrawn by the applicant and thereupon dismissed by the tribunal.

The parties should notify the tribunal immediately the settlement is implemented to avoid any unnecessary re-listing.

Chairman:

Date and place of hearing: 21 August 2002, Belfast

Date decision issued to parties: