Industrial Tribunals Northern Ireland Decisions

Flynn v NIU Racing (T/A Ballyskeagh Greyhound Stadium) & Anor (Application for Review) [2003] NIIT 00566_00 (27 February 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF: 00566/00

APPLICANT: Patrick Flynn

RESPONDENTS: 1. NIU Racing, T/A Ballyskeagh Greyhound Stadium

2. Mr Patrick Owens

DECISION ON APPLICATION FOR REVIEW

The tribunal refuses the respondent's application for review of the tribunal's decision.

Appearances:

The applicant was represented by Mr M Potter, of Counsel, instructed by Jones & Cassidy, Solicitors.

The respondent was represented by Mr R Lavery, of Counsel, instructed by E McEvoy, Solicitors.

1. On 28 June, 15, 16 and 17 October 2001, 11, 12, 13, 14 and 15 February, 21, 22 and 2 May 2002, at Belfast, an application for unfair selection for redundancy, constructive dismissal, breach of contract and unlawful deduction from wages against the respondents was heard.
2. The tribunal found that the applicant:-

(a) had been unfairly constructively dismissed and awarded compensation of £7,705.62; and

(b) was owed contractual notice pay and it awarded him £4,000; and

(c) was not paid sick pay due to him and it awarded him £900.

3. The tribunal's decision was issued in summary form on 19 August 2002 and in extended form on 22 October 2002.
4. A letter was received from the respondents' representative by the Office of the Industrial Tribunals and the Fair Employment Tribunal on 2 September 2002 seeking a review of the tribunal's decision in its entirety on the grounds of Regulation 11(1)(e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996, viz the interests of justice require such a review.
5. The matter was listed on 27 February 2003 at Belfast to consider the respondent's application for a review and if successful to proceed to hear the review.
6. In support of the application for a review the respondents argued that:-

(a) The tribunal erred in making an award for loss of earnings from 11 September 2000 to 31 December 2001 because the applicant had not shown that his job in Thurles was less well paid than the job with the first respondent.

(b) That the tribunal failed to distinguish between the first and second respondents and erred in making any findings against the second respondent.

(c) That the tribunal erred in stating that the applicant was never provided with a company car and it failed to set off against any award made the amounts paid by the respondent for the applicant's car.

(d) The tribunal erred in failing to consider whether the applicant would have been dismissed by reason of redundancy in any event had he not been constructively dismissed and had the tribunal concluded he would have been made redundant in any event it failed to limit his loss to the 12 weeks notice period.

(e) The tribunal's finding that the applicant was constructively dismissed was completely contrary to all the evidence in the case but the applicant's.

7. Applications for a review under Regulation 11(1)(e) fall into two broad categories: where there has been a 'procedural mishap' or where the tribunal's decision has been undermined by events occurring shortly after the decision has been given.
8. Mr Lavery for the respondents argued that this application arose from error on the part of the tribunal and was close to or akin to a procedural mishap.
9. The tribunal refused the respondents' application for a review of its decision. In so concluding it took into account the following matters:-

(a) This application for a review in the interests of justice does not fall within the two broad categories of case set out in Harvey Volume 5 T Paragraph [1139].

(b) That the ground of the interests of justice confers a wide discretion on tribunals but such discretion must be exercised judicially and have regard to the interests of the party seeking a review, the interests of the other party and to the public interest requirement that there should be finality in litigation as far as is possible.

(c) That a disagreement with the tribunal's findings or a belief that the tribunal erred in its decision per se do not fall within the meaning of the interests of justice.

(d) The reasons advanced by the respondents in support of their contention that a review should be granted in the interests of justice are matters of law and as such are matters for the Court of Appeal.

10. On an application by the applicant for costs the tribunal awards costs to the applicant in the sum of £500.00 as it found that the respondents have acted unreasonably in the bringing or conducting of this application.

Chairman:

Date and place of hearing: 27 February 2003, Belfast

Date decision recorded in register and issued to parties: