Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2004/2528_03.html
Cite as: [2004] NIIT 2528_3, [2004] NIIT 2528_03

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2528/03

APPLICANT: Hassan Ibrahim

RESPONDENT: Tullymore House Hotel Limited

DECISION ON APPLICATION FOR REVIEW

The unanimous decision of the tribunal is that the applicant's application for a review of the tribunal's decision issued to the parties on 5 August 2004 must fail on the merits and the decision as issued is confirmed by the tribunal.

Appearances:

The applicant was represented by Miss L McCavanagh, Barrister-at-Law, instructed by McLaughlin & Co., Solicitors.

The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by Mills Selig, Solicitors.

REASONS

The decision in this matter was promulgated by the tribunal on 5 August 2004 in which decision the tribunal unanimously held that the tribunal did not have jurisdiction to deal with the applicant's claim on grounds of illegality of contract and the complaint was dismissed. The applicant's complaint related to breach of contract.

By letter dated 10 August 2004 the applicant wrote to the tribunal as follows:-

"I would like to appeal against the decision of the tribunals decision which was made on 14th/21st May 2004 in Belfast. I have new evidence to prove that the allegation made by the respondent and was backed up by the tribunal on the fraud and illegality of the contract which was false".

The applicant's letter of 10 August 2004 was treated as an application for a Review of the tribunal's decision of 5 August 2004. The sole ground of review set forth by the applicant in his letter was that contained in Rule 13(1)(d) of the Industrial Tribunals Rules of Procedure 1994 which Rules are set forth in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004. Rule 13(1)(d) provides that a tribunal shall have power on the application of a party to review any decision on the grounds that:-

New evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing.

The hearing of the Review matter proceeded with the sole ground of review being that mentioned above. The tribunal heard the further oral testimony of the applicant and considered documents that were adduced in evidence. The tribunal took note of a letter of 11 August 2004 from Ballymena Social Security Office to the applicant which reads as follows:-

"Dear Mr Ibrahim, Regarding your request for details of benefit, we have no trace of a claim for the period from 21-April 2003 to 2-July 2003. Should you have any queries regarding this letter please phone, write or call into us at the above address. Yours sincerely" (etc).

A further letter dated 14 September 2004 also from the same Social Security Office to the applicant reads as follows:-

"Dear Mr Ibrahim, This is to confirm that Mr Ibrahim did not claim any benefits during the period Feb 2003 – July 2003. Nor did anyone else claim for him during this period. Should you have any queries regarding this letter please phone, write or call into us at the above address. Yours sincerely "(etc.)

The tribunal further noted copy of a form completed by the applicant in manuscript and dated 9 August 2004 and apparently directed by the applicant to the Social Security Agency which reads as follows:-

"To Jobseekers. I would like to request the following information in writing:-

This information is for the Courts evidence – (1) Letter to confirm which benefit I was on since 21.4.03 to 2.July 03, (2) Who I was claiming for in this period, (3) Who was living with me – and claiming for me".

The tribunal also saw copy of a note of interview from an Inland Revenue Enquiry Office relating to the applicant in which the interviewing officer, a Mr A Hamilton, noted on 15 September 2004 that Mr Ibrahim as a tax payer had called and wanted the Inland Revenue to confirm certain details concerning pay and tax received. The note expressly refers to the issue of cash payment with the following words being used:-

"It seems that if the employer states cash was paid to employee it invalidates the contract and tribunal does not proceed".

The tribunal noted the oral evidence of the applicant and the respective submissions of the parties. For the applicant, the applicant's representative submitted that in particular the tribunal ought to have regard to paragraph 5 of the tribunal's findings of fact as set out in the decision. After referring to the applicant's approach to the respondent and the request that, as part of the revised arrangements, the sum of £75.00 in cash be paid to him in addition to his payment of salary "going through the books", the decision reads as follows:-

The purpose of this arrangement apparently was to gain advantage on the part of the applicant in terms of State Benefits available to him and to his family relatives and also, in the tribunal's view of the facts, constituted a fraud on the Revenue.

It was submitted that the new evidence placed before the tribunal was significant and indicated that the tribunal was not entitled, in the light of this new evidence, to take the view which it had done in the formulation of its earlier decision. The applicant had steadfastly maintained that the arrangement for the cash payment had not occurred as a matter of fact and the documentation now obtained and available both from Social Security Agency and also the record of the applicant's enquiry with the Inland Revenue ought to persuade the tribunal of that fact. The applicant's case was that the alleged fraudulent arrangement had not occurred and the payment of £75.00 per week had not been made in cash to him by the respondent. There was no illegality of contract and the tribunal's decision in that regard ought properly to be set aside.

For the respondent, the respondent's representative submitted that the new evidence placed before the tribunal was of very little probative value and, insofar as it was of any value, only related to a part of the tribunal's decision. All that the documentation placed before the tribunal confirmed was that the applicant had not claimed any state benefits during the period February 2003-July 2003 nor had anyone else claimed for him during that period. The record of the enquiry with Inland Revenue had not been followed up with any response and therefore was of no probative value whatsoever. In view of the lack of persuasive value of the new evidence the tribunal's decision ought to stand, the respondent's representative submitted.

THE TRIBUNAL'S DECISION

The tribunal took note of the applicant's additional oral testimony. The tribunal noted that the applicant maintained his denial that the arrangement found as a matter of fact in paragraph 5 of its decision had indeed taken place. The tribunal further noted the content of the documentation referred to above. The applicant's application is on foot of Rule 13(1)(d) in that new evidence had become available since the conclusion of the hearing, so the applicant argued, to which the decision related and its existence could not have been reasonably known of or foreseen at the time of the hearing. As the new documentary evidence consisted of correspondence between the applicant and the Social Security Agency which post-dated the issue of the tribunal's decision, the new documentary evidence fulfils the latter part of the description provided for by the Rule. The tribunal therefore concentrated on whether or not this evidence was sufficient to persuade the tribunal to set aside or otherwise amend with its decision. Whilst the correspondence of 11 August 2004

to the applicant from Social Security Agency confirms (although the letter could be rather clearer) that the applicant did not apparently make a claim for state benefits to the Ballymena Social Security Office for the period from 21 April 2003-2 July 2003, and whilst the Social Security Agency's letter of 14 September 2004 confirms that the applicant did not claim any benefits during the period February 2003-July 2003, nor did anyone else claim for him during that period, these facts do not fully address all the issues which caused the tribunal to reach its determination of fact and of law in the case in the manner in which it did.

The tribunal at the hearing and before reaching its decision heard and carefully weighed all of the evidence including both documentary evidence and persuasive oral evidence from three persons apart from the applicant upon which evidence it formed a view of the facts which is set forth in paragraph 5 of the decision. The tribunal found, as a matter of fact, on the balance of all of the evidence, that the sum of £75.00 cash was paid by the respondent to the applicant in addition to the payment of his salary "going through the books". The applicant's denial at the review hearing of the existence of such arrangement does not serve to alter the tribunal's views in respect of that primary finding of fact.

Turning then to the purpose of the arrangement, the tribunal had found on the evidence before it at the hearing that this was gain advantage on the part of the applicant in terms of State Benefits available to him and to his family relatives and also, in the tribunal's view of the facts, constituted a fraud on the Revenue. Dealing with these in reverse order, the new evidence placed before the tribunal does not cause it to alter its view in respect of the fraud on the Revenue issue. Whilst there was evidence that the applicant had by this stage of the Review hearing commenced some process of enquiry, no further evidence of a conclusive nature was placed before the tribunal nor, the tribunal notes, was any application made to postpone the Review hearing in order that same might be forthcoming. The tribunal was obliged to decide that point on the evidence before it and there was nothing to cause it to alter its view. The other purpose of the arrangement related to State Benefits available to the applicant and his family relatives. The documentary evidence placed before the tribunal seems to confirm the applicant's contention at Review hearing that he did not claim any benefits from Ballymena Social Security Office (without the nature of these being particularised) from February 2003 – July 2003 nor did anyone else claim any such for him during that period. Notably, this correspondence appears to relate to benefits that would otherwise have been claimed from Social Security Agency via Ballymena Social Security Office. State Benefits might take one or a number of forms and might be potentially the subject of a claim from a number of different parties including, it is possible, persons related to the applicant. The tribunal's view of this additional purpose behind the arrangement was formed on its initial hearing of the evidence which suggested that to be the case. Nothing which the tribunal has heard or seen is of sufficient weight to cause it to alter its view in respect of the additional purpose behind the arrangement. Even if it had done so, the fraud on the Revenue issue remains unaddressed by the applicant and the tribunal would repeat that it found as a matter of clear and proven fact the existence of the payment which was borne out both by the evidence of the three witnesses referred to paragraph 5 of the decision and also by additional documentary and other evidence available and placed before the tribunal.

Taking the sum total of the evidence gathered in the course of the initial hearing taken together with the new evidence placed before the tribunal, the tribunal does not see sufficient now before it to cause it to take any other view but that its decision ought properly to be confirmed.

Accordingly the application for review is dismissed on the merits, without further order.

Chairman:

Date and place of hearing: 20 September 2004, Belfast.