Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Moore v Little Acorns Pre [2008] NIIT 269_07IT (09 December 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/00269.html
Cite as: [2008] NIIT 269_07IT, [2008] NIIT 269_7IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 00269/07

CLAIMANT: Donna Moore

RESPONDENT: Little Acorns Pre-School

DECISION ON AN APPLICATION FOR REVIEW

The unanimous decision of the tribunal is that the application for a review is refused and the original decision sent to the parties on 26 September 2008 stands.

Constitution of Tribunal:

Chairman: Mr B Greene

Members: Mr R McKnight

Mr S Adair

Appearances:

The claimant was neither in attendance nor represented.

The respondent was represented by Mr Charles Kennedy a Director of the respondent organisation.

1. On 26 August 2006, at Derry, an application for unfair dismissal against the respondent was heard.

2. The tribunal found that the respondent had failed to complete the statutory disciplinary procedures and that that amounted to an automatic unfair dismissal. The tribunal awarded the claimant £382.92 for this breach.

The tribunal dismissed the claimant’s claim for unfair dismissal under Article 130 of the Employment Rights (Northern Ireland) Order 1996.

3. The tribunal’s decision was issued to the parties on 26 September 2008.

4. The claimant wrote to the Office of the Industrial Tribunals and the Fair Employment Tribunal, by an undated letter received on 10 October 2008, in which she requested a review of the case.

5. Following a preliminary consideration of the claimant’s application for a review the Chairman directed that a review be listed and accordingly the claimant’s application for a review was listed for hearing on 26 November 2008.

6. By letter of 25 November 2008 the claimant wrote to the Office of the Tribunals and indicated that she would not be able to attend the review hearing listed for 26 November 2008. In the letter she did not make any application to have the matter postponed or re-listed on another date. Accordingly, the tribunal decided that it was appropriate to continue with the review application in the absence of the claimant.

7. In her letter seeking a review the claimant did not set out the statutory grounds upon which she intended to rely. The tribunal therefore approached this matter by considering the claimant’s submission against each of the five statutory grounds that permit a review to be made.

8. The claimant’s review letter contains four complaints in relation to the tribunal’s decision which may be summarised as follows:-

(i) There were errors in the Findings of Fact relating to the claimant’s dates of employment, the extent of her duties in financial matters within the respondent organisation and about a conversation she had with a creditor.

(ii) She had a claim for notice pay.

(iii) The claimant’s falsification of records and receipts was done by her on the instruction of the Directors and was a regular occurrence and the Directors kept two sets of books.

She had not been provided with the documents submitted to the tribunal in advance of the original hearing by the respondent.

9. The claimant was provided with the documents, submitted to the tribunal by the respondent before the original hearing, on 6 November 2008, with the notice of the review hearing date. She did not make any attempt to add or amend her reasons for a review arising from receipt of the respondent’s submission.

10. Regulation 34(3), Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 sets out the five grounds upon which a party can rely in order to bring a review application. Those grounds are:-

(i) the decision was wrongly made as a result of an administrative error;

(ii) the party did not receive notice of the proceedings leading to the decision;

the decision was made in the absence of the party;

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

the interests of justice requires such a review.

11. In relation to the first ground for review the claimant’s letter does not allege an administrative error. Rather it claims that there were errors in her dates of employment and in relation to the extent of her financial duties in the respondent organisation and about a conversation that she had with a creditor.

In the tribunal’s view these matters do not amount to an administrative error. Even if they were an administrative error they are not central to the decision and conclusions of the tribunal. Accordingly, the tribunal is not persuaded that the claimant has made out this ground to justify her application of review.

12. In relation to the second ground it is clear that the claimant did receive notice of the proceedings and chose not to attend. Accordingly, this ground is not open to the claimant to justify her application for a review.

13. In relation to the third ground the claimant was made aware of the hearing and had indicated to the tribunal that she would not be attending the hearing. She did not seek to have the matter adjourned to another occasion and indeed submitted a written submission for the consideration by the tribunal. Whilst the claimant was indeed absent from the tribunal hearing that absence arose because of the claimant’s decision not to attend, the lack of any application to have the matter deferred or postponed and her clear wish that the matter be considered by the tribunal by making a written submission. Accordingly, this ground is not open to the claimant also as a means of justifying an application for review.

14. In relation to the fourth ground the claimant has alleged that the falsification of notes and records was done on the instruction of the Directors of the respondent company. The claimant had not made this allegation previously. However, the allegation of falsifying wages records was made by the respondent in its response to the claimant’s claim. The claimant has neither challenged nor commented on that either in her submission or in any of the minutes of the meetings produced by the respondent nor did she make such an allegation in her originating application. Consequently it cannot be said that this evidence was not available or could not reasonably have been known or foreseen and therefore the claimant fails to satisfy the tribunal that this ground of a review is open to the claimant.

15. In relation to the fifth ground the statement that the claimant falsified wages records on the instruction of the Directors is one that potentially could justify the claimant’s succeeding in her review in the interests of justice if that allegation were true.

The claimant only made this allegation in her letter seeking the review. The tribunal had the benefit of hearing from Mr Charles Kennedy, a current Director of the respondent organisation, who was not a Director at the time these events occurred but was then the parent of a child attending the school. He has examined the books and records. He has not found a second set of books as the claimant contended. Neither has he found any other evidence of falsification of records apart from those matters relating to the claimant. Nor has there been any allegation made by any one else that other documents or records were falsified. Mr Kennedy quite frankly indicated to the tribunal that he had not examined all the books in detail but from his perusal of them they seemed to him to be correct and matched up with the other financial records held by the respondent organisation.

16. Given the seriousness of the claimant’s allegation, which has not been tested or supported by other evidence the tribunal is not persuaded that the claimant has established, that the falsification of records was done at the direction of the Directors. The only evidence in support of that contention is the claimant’s allegation. The evidence given by Mr Kennedy which the tribunal found impressive questions the veracity of those allegations. The claimant has not established, on the balance of probabilities, that her allegations are in fact correct.

The claimant has not shown that the interests of justice require the decision to be reviewed and accordingly this ground is not open to the claimant also.

17. The claimant has failed to establish any of the statutory grounds necessary to cause the tribunal to vary or revoke its decision. Therefore the tribunal confirms its decision of 26 September 2008 and dismisses the claimant’s application for a review.

Chairman:

Date and place of hearing: 26 November 2008, Belfast.

Date decision recorded in register and issued to parties: