Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 9070/03

APPLICANT: John Flanagan

RESPONDENT: Manor Inn, Primacy Wine Lodge Ltd

DECISION ON A REVIEW

The unanimous decision of the industrial tribunal on an application by the applicant to review the decision issued on 17 November 2003 is that:-

(i) the time appointed for making an application for a review of the said decision be extended until 27 February 2004; and

(ii) that the said decision be revoked and that the matter be re-listed before a differently constituted tribunal in due course.

Appearances:

The applicant was represented by Mr B McLatchie, of Belfast Unemployed Resource Centre.

The respondent did not appear.

1.	(i)	The applicant, Mr Flanagan, by an originating application presented to the tribunal on 20 October 2003, alleged that he had been unfairly dismissed by the respondent, and that he had not received pay in lieu of notice owing to him.
	(ii)	At the time of presenting the originating application, Mr Flanagan was not represented.

1. By an undated letter, clearly sent shortly afterwards, to the Office of the Tribunals and received on 23 October 2003, Mr Flanagan wrote that he "would like to withdraw [his] application". However, in the next paragraph of the letter he went on to state that his case was "being taken on by a Mr Barry McLatchie", ie his present representative.
2. This correspondence was placed before a Chairman of the tribunals and, on 17 November 2003, a decision issued in the following terms; "The application is dismissed following its withdrawal without any objections".

4.	(i)	By undated letter received in the Office of the Tribunals on 27 February 2004, Mr McLatchie, on behalf of the applicant, sought a review of that decision on the ground that the interests of justice require such a review.
	(ii)	He conceded that while the applicant clearly used the word 'withdraw' in his letter, he then went on to state that his case was being taken on by Mr McLatchie.
	(iii)	The respondent was not represented at the hearing. Notice of the date and time fixed for the hearing had been sent to the respondent on 8 February 2005, and the tribunal was satisfied that it should proceed to hear the application for a review.
	(iv)	The applicant stated, in evidence, that his use of the word 'withdraw' was a mistake and that he was not aware of the significance of its meaning, or of legal language generally. He further stated that he had no knowledge of legal procedures.
5.	(i)	The tribunal accepts the evidence of the applicant. While the word 'withdraw' is an unequivocal one, its use in this case was not, and it is clear from the letter that Mr Flanagan intended to continue with his case and was merely appointing a representative. In the circumstances it is appropriate having regard to the applicant's lack of knowledge of legal procedures, to extend the time appointed for making an application for a review until 27 February 2004 (the date of receipt of the application).
	(ii)	The tribunal is further satisfied that it is in the interests of justice that the decision to dismiss the applicant's claim issued on 17 November 2003 should be revoked, so that the applicant can continue with his claim.
	(iii)	It appears that the reason for the applicant's dismissal was a reason connected with the transfer of an undertaking. Mr McLatchie indicated that he wished to consider joining the transferee to the proceedings. The matter will therefore be re-listed for hearing before a differently constituted tribunal in due course.

Chairman:

Date and place of hearing: 9 March 2005, Belfast

Date decision issued to parties: