Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2526/03

APPLICANT: Kenny McCorriston

RESPONDENTS: 1. Dave Flynn

2. Pulse Fitness Limited

DECISION ON AN APPLICATION FOR REVIEW

The unanimous decision of the tribunal is that:-

1. The time for making an application for review of the decision to dismiss the originating application of the applicant, following its withdrawal without any objections, registered and issued to the parties on 24 November 2003 is extended.
2. The application for review of the said decision on the grounds that the interests of justice requires such a review is granted and following such a review of the said decision is revoked and the tribunal orders a rehearing before a differently constituted tribunal.

Appearances:

The applicant appeared in person and was unrepresented.

The respondents were represented by Mr J Copeland, Service Manager of the second respondent.

3. The Decision is given in extended form, pursuant to Rule 12(4) of the Industrial Tribunals Rules of Procedure 2004, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004. The tribunal does not consider the reasons in summary form would sufficiently explain the reasons for its decision.
4. The applicant presented to the tribunal an originating application on 18 July 2003, making a complaint, of unfair dismissal under the Employment Rights (Northern Ireland) Order 1996. The Notice of Appearance of the respondents was presented on 18 August 2003. By letter dated 4 November 2003 the applicant stated "I, Kenny McCorriston wish to withdraw from the industrial tribunal case against Pulse Fitness and D. Flynn. I am doing this for personal reasons and no other." Notification of withdrawal of the said application, dated 5 November 2003, was sent by the tribunal to the respondents' representatives. The formal decision that the application was dismissed, following its withdrawal without objections was decided by a Chairman sitting alone and was registered and issued to the parties on 24 November 2003. By letter dated 2 December 2003, the respondents' representatives referred to the said Notice of Withdrawal and indicated that the respondents did not object to the said withdrawal and looked forward to receiving the tribunal's formal dismissal of the proceedings. By letter dated 3 February 2004, received by the tribunal on 9 February 2004, the applicant wrote to the tribunal. The letter stated:-

"I dropped a tribunal case last November, which I had against my previous employers (Pulse). I would like to have this case reopened again if possible. I stated when dropping it, that I was doing so for my own reasons, but that couldn't be further from the truth.

I had applied for a new job and was told by my then prospective employer that I would get a second interview and stood an excellent chance of getting the job, but he wanted to verify my references that I had received from two Pulse employees (my immediate boss and job co-ordinator) to confirm that they were genuine, I stated that I was happy for him to contact them. Within a day or two I was contacted by Pulse who stated that they would only speak to my prospective boss if I dropped the case against them. I asked them what they had said to my boss while they kept him waiting until they spoke to me. They stated to him the people that he wanted to speak to were both on holiday. Obviously I was left with no choice as this was my future they were playing with and so agreed to write the letter they had dictated to me. Pulse confirmed my references and I got the job. Less than two weeks later (early in December) I contacted your office for information about what I could do, I was told that the supervisor would ring me in due time, but I did not receive a call. I rang your office (on 2-2-04) and was told to put my problem in writing. I feel Pulse have gravely wronged me in the way they let me go and they themselves knew this, which was why they basically blackmailed me into dropping the case. They shouldn't be allowed to make the rules up as they go along".

By letter dated 2 April 2004, the parties were informed by the tribunal that the case would be listed in order to determine (a) whether or not time should be extended for the making of an application for review (b) if so, should the decision to dismiss be reviewed in the interests of justice and (c) if so, should the decision to dismiss be revoked. This tribunal was appointed by the President of the Industrial Tribunals and the Fair Employment Tribunal, pursuant to Rule 13(b) of the said rules to hear the said applications.

5. .1 There was no dispute between the parties that the application for review was out of time, not having been made within fourteen days of the date the decision was sent to the parties. The applicant accepted that he received a copy of the decision dismissing his application within a day or two of 24 November 2003. He gave evidence to the tribunal that he started his new employment on 1 December 2003 and on or about 4/5 December 2003 he contacted the tribunal and asked how he could get the case restarted again. He stated that he spoke to a female member of staff whose name he did not know; who, after confirming with him the case reference, informed him she was not permitted to give advice and that he would have to speak to a supervisor. When he asked to do so it was explained that the office was very busy and there was no one available; but that a supervisor would contact him, though the contact would not be in the next couple of days. The impression he got from this member of staff, although he accepted he was not told so directly, was that in view of the busy nature of the office it would be weeks rather than days before he could expect a supervisor to get back to him. He was not told to put his request in writing, nor was he told that there were any relevant time limits. After the Christmas and New Year period, in the absence of any call from the tribunal, on 2 February 2004 he rang the tribunal office again and was told to put his problem in writing. This he did in his letter dated 3 February 2004.
6. 2 The tribunal has looked at the tribunal's file and can find no reference on the said file to either telephone call to the tribunal. The tribunal noted that, despite investigation by the tribunal office following receipt of the letter dated 3 February 2004, it had not been possible to identify the female member of staff, whom the applicant stated he spoke to on or about 4/5 December 2003. The tribunal has further noted that the applicant, in accordance with the normal practice of the tribunal when issuing such a decision, was not sent a copy of the explanatory notes which are sent by the tribunal with decisions issued following a substantive hearing. These notes set out, inter alia, the powers of the tribunal to review any decision of the tribunal, including the circumstances when such an application for review can be made and, in particular, the time limits and procedures for any such application.
7. .3 The applicant, in seeking an extension of time to make his said application, stated that if he had been told to make his application at the time of his first telephone call to the tribunal he would have done so. He stated that there was nothing to prevent him from doing so, since by the time of his said telephone call he had obtained his new employment. He pointed out, that following his second call to the tribunal, he had written to the tribunal, as he had been instructed to do by the member of staff. He acknowledged that, in the absence of any contact, as promised, by the tribunal he had waited some time after the first call before contacting the tribunal again. However, the applicant said that having been led to believe that the response would not be immediate, he had therefore, in the circumstances, waited for an interval after the Christmas/New Year holiday period. He maintained that, if he had been told by the person with whom he spoke about the time limits or indeed had had sight of the explanatory notes he would have acted within the said fourteen day period.
8. .4 Mr Copeland did not directly challenge what the applicant had stated in evidence, save to point out the long time period which had elapsed between the date of the decision on 23 November 2003 and his letter dated 3 February 2004, and which was well outside the fourteen day period set out in the rules of procedure for an application for a review.
9. .5 The tribunal has a discretion to extend, pursuant to Rule 17 of the 2004 Rules of Procedure the said time limit of fourteen days. The tribunal has a wide discretion and is required to take account of all relevant factors, weighing and balancing them against the other and reaching a decision which is objectively justified on the grounds of reason and justice (see KWIKSAVE STORES LIMITED – V – SWAIN (1997) ICR 53 – albeit a case relating to Notice of Appearance). The tribunal also considered the principles set out in the Northern Ireland case of DAVIS –V- N.I. CARRIERS (1979) N.I.19 relating to the extension of time, where a time limit is imposed by rules of court and the court is given discretion to extend any such time.

The tribunal is satisfied, having closely observed the applicant give his evidence, that his evidence relating to his call to a female member of staff of the tribunal on 4/5 December, when the application would still have been in time, was correct. The absence of any record of any record of the telephone call, in the tribunal's view, cannot be determinative of the matter. The tribunal is not satisfied all such telephone calls made to the tribunal are recorded and noted. In this context, the tribunal noted that the telephone call on 2 February 2004, which clearly led to the letter dated 3 February 2004, was also not recorded on the tribunal file. The tribunal is further satisfied that since the applicant, by the time of this first call to the tribunal, had obtained his new job if he had been advised to put his application in writing into the tribunal he would have had no reason not to do so. Indeed he did so following the second telephone call on 2 February 2004. The tribunal was of the opinion that what was stated to the applicant, in the course of that first telephone call, was of particular significance given the absence of any explanatory notes issued with such a decision. If the applicant had received such explanatory notes he would have known the tribunal's powers with regard to review, the relevant procedures and how to make an application and the relevant time limits. He would have been in possession of such information, regardless of the said telephone call. The decision to dismiss on 23 November 2003, albeit it followed notification of withdrawal, without any substantive hearing, is no less a decision of the tribunal which can be the subject of an application for review. The tribunal accepts that the applicant, following the said telephone call on 4/5 December 2003, was waiting for the tribunal to contact him. The applicant had been told that the reply would not be in the next day or two and indeed had obtained the impression that it might be some weeks before he would be contacted. The tribunal in such circumstances could understand why he did not contact the tribunal over the Christmas/New Year period and for an interval thereafter. However, the tribunal had some concern that it was not until 2 February 2004 that the applicant, having had no contact from the tribunal, telephoned the tribunal office. However, the tribunal concluded that such delay although at the margins of acceptance, could be excused, given what he had been told by the tribunal member of staff, the holiday period, and the absence of the explanatory notes. In such circumstances the urgency of the applicant's situation, who was unrepresented, would not have been apparent to him. There was no suggestion by the respondents, who did not call any evidence on this issue of time, although invited to do so by the tribunal, that the delay in making the application had resulted in a particular prejudice for them. There has been no hearing of this matter on the merits. Whilst acknowledging that the rules of procedure are there to be complied with; after balancing and weighing all the above matters, the tribunal considered that, in the circumstances, time should be extended.

10. The tribunal then went on to consider whether the decision to dismiss should be reviewed in the interests of justice.
11. .1 The tribunal, after hearing the evidence of the applicant and Mr Copeland found the following facts:

Following the applicant's dismissal on 9 July 2003, the applicant obtained from Mr Copeland, the service manager of the second respondent and Ms S Simpson – Rome, International Service Administrator, favourable references dated 21 July 2003. These references were addressed to "To whom it may concern". In or about November 2003 the applicant applied for a job with Calvert Office Equipment. Following an interview, at which he had handed in the said references he was informed by his new line manager, Mr McRoberts, that he had been successful and was asked if he had any objection to his new employer contacting the writer of the said references to verify them. The applicant had no objection. On or about 28 October 2003 Mr Copeland whilst on holiday, received a phone call from the respondent's office informing him a Mr McRoberts had telephoned about a reference for the applicant. As was clear from Mr Copeland's diary entry for that date, and confirmed by him in his evidence, he didn't contact Mr McRoberts but rather contacted Ms J Kiely, the personnel manager of the second respondent on that date and asked her whether he should give a reference. She indicated that if the tribunal case was still ongoing he could not give a reference. Prior to this hearing, the respondents' representatives had provided to the tribunal summaries of the evidence to be given at the hearing by Ms Kiely and Mr Copeland, which were copied to the applicant. These summaries were not signed and, in the event, Ms Kiely did not give evidence to the tribunal. Significantly, neither statement made any reference to this call between Mr Copeland and Ms Kiely. Mr Copeland maintained that his next involvement was when the applicant contacted him on 30 October 2004 about the reference; whereas the applicant said it was Mr Copeland who contacted him. There were a number of discrepancies in the evidence given by Mr Copeland to the tribunal in comparison with what had been stated in the summary of his evidence. In the circumstances, the tribunal preferred the evidence of the applicant that it was Mr Copeland who contacted the applicant. However, regardless of the dispute between them as to who had made the telephone call, there was no dispute that there was a telephone call and that, during the course of this telephone conversation, the applicant made it clear the necessity for him to receive the reference if he was to get the job with Calvert Office Equipment Limited. At this time the applicant was out of work. Mr Copeland frankly and fairly admitted in evidence to the tribunal that he had no difficulty in standing over the references he had given to the applicant in July 2003 and would have had no difficulty in giving Mr McRoberts the necessary verification; but his employers had said to him that he was unable to do so whilst the applicant pursued his tribunal complaint. The tribunal is satisfied, that during the course of the telephone conversation on 30 October 2003, Mr Copeland made it clear to the applicant that he would not be able to get the verification of the references unless he dropped his tribunal complaint, which would have to be done in writing and notified to the respondent and the tribunal. Faced with the necessity of obtaining verification of his reference the tribunal is satisfied the applicant agreed to withdraw his tribunal complaint, as requested by the respondent in return for obtaining the said verification. On 31 October 2003 on foot of the said agreement the applicant sent a fax to the second respondent stating "I Kenny McCorriston wish to withdraw from the industrial tribunal case against Pulse Fitness. I am doing this for personal reasons and no other"; and on 3 November 2003, Mr Copeland contacted Mr McRoberts and verified the said terms of the said references. The letter dated 31 October 2003 by the applicant, on its face, only withdrew the complaint against the second respondent. The further letter dated 4 November 2003, referred to above, was sent by the applicant whenever it was pointed out to him, either by the tribunal and/or the second respondent that his withdrawal had not also referred to his complaint against the first respondent.

12. .2. Under Article 245 of the Employment Rights (Northern Ireland) Order 1996 any provision in any agreement (whether a contract of employment or not), is void in so far as it purports:-

(a) To exclude or limit the operation of any provision of this order,

(b) To preclude a person from bringing any proceedings under this Order before an industrial tribunal Article 245(1).

The said provision does not apply, inter alia, where a valid compromise agreement has been entered into under the said Order and/or where an agreement has been made as a result of conciliation action by the Labour Relations Agency under Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996.

The respondent did not seek to enter into a conciliation agreement nor a compromise agreement in this matter. The said provision in the agreement entered into requiring the applicant to withdraw his complaint from the tribunal in return for obtaining the verification of the reference was, in the tribunal's view, void - and thereby precluded the applicant from bringing any proceedings under the order before an industrial tribunal – the very situation which Article 245 of the 1996 Order was designed to prevent.

13. .3 The applicant has made an application for review on the grounds that the interests of justice require such a review. Harvey on Industrial Relations and Employment Law paragraph T/1138-1139 has made clear that this ground confers a wide discretion on a tribunal. Whilst the discretion is undoubtedly wide, it is not boundless and it must be exercised judicially and with regard, not just to the interest of the party, seeking the review, but also the interest of the other party and to the public interest requirement that there should, as far as possible be finality in litigation. Applications generally fall into two broad categories; those in which there has been a procedural mishap of one sort or another, and those in which the tribunal's decision has been undermined by events occurring shortly thereafter. The tribunal is of the opinion that the complaint having been withdrawn in the circumstances set out above and the decision having been made following such withdrawal, the interests of justice require a review and that following such review the decision should be revoked. As the decision was made by a Chairman sitting alone the tribunal Orders that the applicant's complaint should be reheard before a differently constituted tribunal.

Chairman:

Date and place of hearing: 20 October 2004, Belfast