Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 260/06

CLAIMANT: Stephen Nelson

RESPONDENT: Newry and Mourne District Council

DECISION ON A REVIEW APPLICATION

The decision of the Chairman is that the response which was rejected because it was received outside the statutory time limit should be accepted upon review in the interests of justice.

Constitution of Tribunal:

Chairman (sitting alone): Mrs Smyth

Appearances:

The claimant was represented by Mr J King, of SIPTU.

The respondent was represented by Mr P O'Kane, Solicitor, of McShane & Company, Solicitors.

1. The issue to be determined is whether the decision to reject the response should be reviewed in the interests of justice and the response accepted notwithstanding the fact that it was received by the Office of the Tribunals outside the statutory period of 28 days from the date on which the respondent was sent a copy of the claim. It is accepted by the respondent that the response was due by 10 April 2006 but was not received by the office until 1 June 2006.
2. The tribunal heard evidence from Mrs Catherine Sweeney, Assistant Director of Administration, on behalf of the respondent. The tribunal was also provided with a written opening statement in which Mr O'Kane, the respondent's solicitor, accepted responsibility for the submission of the response outside the statutory time limit. The tribunal was also provided with a bundle of documents relating to the disciplinary process which is the subject of the complaint in this case.
3. Having heard evidence from Mrs Sweeney and considered the opening statement and bundle of documents I find the following facts proved on a balance of probabilities:-

(3.1) On 14 March 2006 the respondent received a letter, dated 13 March 2006, from the Office of the Tribunals enclosing a copy of the claimant's claim and a blank response form and informing the respondent that the date for the return of the response form was 10 April 2006.

(3.2) On 20 March 2006 the respondent wrote to its solicitor enclosing the documents. On 27 March 2006 the solicitor, Mr O'Kane, wrote to the respondent requesting a meeting in relation to the claim.

(3.3) That meeting was not held until 8 May 2006, after the time limit had expired. Mr O'Kane accepts full responsibility for the failure of the respondent to either put in a response by 10 April 2006 or to apply for an extension of time to do so prior to 10 April 2006. By way of explanation he states that "[he] can only say that the critical requirement to seek an extension of time, whilst known to [him] escaped [his] mind at the material time".

4. Mr O'Kane contended that it is clear from the response form which was submitted outside the time limit and from the bundle of documents that the respondent has an arguable case in defending the proceedings which allege sex discrimination. The tribunal finds the following facts proved in relation to this issue:-

(4.1) On 21 June 2005 an anonymous letter was received by the Chief Executive of Newry and Mourne District Council. The letter stated:-

" … As a Ratepayer, I wish to draw your attention to an incident which occurred in Warrenpoint Square carpark which concerned and angered me greatly.

On Monday 20^th June 2005 at approximately 12.30pm I witnessed a Council vehicle (Registration No FJZ 7763) which had a trailer on tow and filled with bedding plants parked in the Square. I assume these plants were being planted in the public flowerbeds to enhance Warrenpoint for Ratepayers and visitors alike.

A small Council vehicle (Reg. No. UBZ 7235) pulled up alongside. The driver of this vehicle along with the female driver of the vehicle FJZ 7763 proceeded to transfer quite a few of the plants to the back of the small van.

This angered me to the extent that I followed the vehicle (Reg. No. UBZ 7235) to the Burren area where he turned up a private laneway. An area were these flowers would not be visible to the general public. This type of action totally disgusts me and I can only wonder if the Ratepayers of the area can avail of the same 'free service' that some employees are taking advantage of. May I also add that I and the many other ratepayers in the Newry and Mourne area [are] paying for these plants through their Rates.

I request this matter be investigated through the usual internal channels of the Council and appropriate disciplinary action be taken against those culprits for what I can only determine as blatant theft.

I remain anonymous at this time and would hope that I do not witness such actions again.

Yours faithfully,

Angry Ratepayer."

(4.2) The claimant was charged with two disciplinary offences, namely:-

(1) Obtaining plants from Council vehicle, Registration FJZ 7763, on Monday 20 June 2005 which amounted to theft and should be considered as gross misconduct under the Council's Disciplinary Procedures for Manual Employees.

(2) Unauthorised use of the Council van, Vehicle Registration UBZ 7235, to take these plants to your house which amounts to major misconduct under the said disciplinary procedures.

(4.3) Following a disciplinary hearing, the claimant was found guilty of Charge (1) only.

(4.4) An appeal hearing was held on 14 December 2005. The charge was upheld and the claimant was given a Final Written Warning lasting 24 months, and informed that he would be redeployed at a suitable post where he would not be responsible for Council property or Council material. He would be paid at the rate of that redeployed post.

(4.5) The claimant alleges that he was subjected to sex discrimination both in the nature of the charges which he faced and in the subsequent penalty imposed. His comparator is Ms O'Donnell who accepted that she had given the plants to the claimant and is also an employee of the respondent.

5. The law

(5.1) In Moroak T/A Blake Envelopes v DL Cromie EAT/0093/05/DM the Employment Appeal Tribunal expressed the view that there is power under Rule 34 of the Rules of Procedure 2005 where the interests of justice require, to review the order made under Rule 6 not to accept a response served out of time and to direct it be accepted. The test to be considered is whether it is just and equitable to do so. In that case the response was lodged 44 minutes late. The reason given was computer failure. Mr J Burton referred to the decision of the EAT in Kwik Save Stores Ltd v Swain [1997] ICR 49 which sets out the factors to be taken into account in the exercise of the tribunal's discretion. All relevant factors must be taken into account, including the explanation for delay, the merits of the defence and the prejudice to each party. At the end of the day, the tribunal must reach a conclusion which 'was objectively justified on the grounds of reason and justice'.

(5.2) In McCullough v British Broadcasting Company, the court permitted a default judgment to be set aside on two occasions. On appeal by the plaintiff, Mr Justice Girvan stated that "the primary consideration is whether the defendant has merit justifying the matter going to trial". The court must be satisfied that the defendant has a prima facie defence.

(5.3) In Pendragon PLC T/A CD Bramall Bradford v Gary Corpus, UK EAT/0317/05 CK EAT, it was held that the Chairman had erred in deciding that he had no discretion to review a default judgment because no good reason had been shown for the delay. Applying the principles in Kwik Save v Swain although the reasons for delay must be considered, and the defence had to be shown to have merit, the 'discretion is a broad just and equitable one'. This case has since been followed by the EAT in The Pestle and Mortar v M J Turner UK EAT/0652/05/7T.

6. Conclusions

In my view, the interests of justice require that the response be accepted notwithstanding the fact that it was received outside the statutory time period. In deciding that there is an arguable case contained within the response I wish to make it clear that I have in no way prejudged the merits of the claimant's claim. An 'arguable case' merely means that there is an argument which the respondent should be entitled to put before a tribunal. Whether the response is ultimately considered to be meritorious is entirely a matter for the tribunal hearing the case. In reaching this decision I take account of the fact that compensation for discrimination cases is unlimited and therefore the potential prejudice to a respondent who is prevented from responding to a claim is therefore substantial.

Chairman:

Date and place of hearing: 26 October 2006, Belfast

Date decision recorded in register and issued to parties: