Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 2590_6IT, [2008] NIIT 2590_06IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 2590/06

2508/06

CLAIMANT: Matthew Wood

RESPONDENTS: 1. Anthony Barbour

2. James Mawhinney

3. Ann's Pantry

DECISION ON A REVIEW

The unanimous decision of the tribunal is that its original decision dated 10 October 2007 be revoked; and this matter be re-heard before a differently constituted tribunal.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr I O'Hea

Ms F Cummins

Appearances:

The claimant was represented by Mr H Coll, Solicitor, of Elliott Duffy Garrett, Solicitors.

The respondents were represented by Mr M Potter, Barrister-at-Law, instructed by Savage & Company, Solicitors.

The basis of the application for review

The letter dated 2 November 2007 from Hewitt & Gilpin, Solicitors, (who then acted for the first-named respondent) was deemed to be an application for review on the ground of Rule 34(3)(c) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 which says that:-

"A decision can be reviewed on the grounds that it was a decision made in the absence of a party."

Although it was not pleaded in the letter of Hewitt & Gilpin dated 2 November 2007, Mr Potter purported to add a further ground for the review under Rule 34(3)(e) – that the interests of justice required a review on the grounds of procedural mishap. The tribunal does not accept that this ground is before it as the letter requesting the application for review did not set it out as being a relevant ground and, on the balance of probabilities, the tribunal considers that if the respondents had considered that it was a relevant ground at that time (being proximate in time to the issue of the decision) then it would have been set out by their then solicitors. Although the letter of 2 November 2007 purports to be a letter written on behalf of the first-named respondent only, at the hearing of the review, Mr Barbour acknowledged that he (and by extension his solicitor, Savage & Company) were also acting for the second and third-named respondents.

Pursuant to Rule 35 of the 2005 Rules the Chairman of the tribunal carried out a preliminary consideration of the application for review and concluded that as the decision had been reached in the absence of the respondents, she could not say that there was no reasonable prospect of a decision being varied or revoked.

Sources of evidence

The first-named respondent gave evidence.

The relevant legislation and case law

STATUTE

Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

CASE LAW

Priddle v Fisher & Sons [1968] 3 All ER 506

Holland v Cyprane Limited [1977] ICR 355

Bowater PLC v Charnwood [1991] IRLR 340

Costellow v Somerset County Council [1993] All ER 952

Kwik Save Stores v Swain & Others [1997] ICR Page 49

Mills v Johnson [2001] 1 All ER 420

Teinaz v Wandsworth London Borough Council [2002] All ER 238 and [2002] IRLR 721

Andreou v Lord Chancellor's Department [2002] IRLR 728

Roberts v Skelmersdale College [2003] ICR Page 1127

In the matter of an application for JR5 for a judicial review [2006] NIQB 34

The sequence of relevant events

On 6 June 2007 this matter was listed for hearing by the tribunal. On that date the parties entered into a compromise agreement which provided that certain monies were to be paid to the claimant. This did not happen and by letter dated 19 July 2007 the claimant asked for the matter to be re-listed.

A Notice of Hearing setting out a hearing date of 29 August 2007 and dated 13 August 2007 was issued to the parties. Mr Coll confirmed that he received his Notice on 14 August 2007.

It was alleged, on behalf of the first-named respondent, that the Tribunal Office telephoned him on 14 August 2007 to let him know orally that the matter had been listed for the following Wednesday 19 August 2007. On the balance of probabilities, the tribunal does not consider that this was in fact the case. Not only is there no record of this telephone conversation on the office file, but there is no mention of it taking place in the letter from Hewitt & Gilpin dated 2 November 2007. The first-named respondent alleged that he had given details of his holiday plans to the office by virtue of that telephone conversation. On the balance of probabilities, the tribunal considers that this is not true. If it had been the case, the tribunal considers that the text of the conversation as well the fact of the conversation would have been set out in the application for review dated 2 November 2007.

By a letter dated 15 August 2007, but according to the postmark on its envelope posted on 22 August 2007 and received by the tribunal on 23 August 2007, the first-named respondent indicated that he would not be available for hearing on the hearing date of 29 August 2007 as he was on holiday until 31 August 2007.

The first-named respondent's letter of 15 August 2007 was treated as an application to adjourn the hearing on 29 August 2007; but was given consideration by a Chairman of the Tribunals on 28 August 2007. The decision was to refuse the application for adjournment indicating that it could be renewed on the day of hearing.

There being no application, on the behalf of the respondents, to adjourn the hearing on the day of the hearing, the tribunal proceeded to hear the case in the absence of the respondents pursuant to Rule 27(5) of the 2005 Rules.

There was a history of non-co-operation with the tribunal on the part of the respondents in this case.

Conclusions

The main thrust of Mr Potter's argument was that the tribunal by refusing the application for an adjournment subject to a right to renew the application on the day of hearing, was not giving a proper opportunity for the first-named respondent to be heard on the question of the adjournment. Having concluded that the telephone conversation of 14 August 2007 did not happen, the tribunal had no information as to whether or not the first-named respondent was still in this jurisdiction and certainly had no information as to his holiday destination at the time of decision. At the hearing of the application for review, it became apparent that the first-named respondent had actually left to go on holiday on 25 August 2007, returning on 1 September 2007 and his destination was the French Pyrenees. In these circumstances, we conclude that only notifying the first-named respondent on 28 August 2007 was not giving a proper opportunity for the first-named respondent to be heard. The decision to refuse the adjournment was communicated to the first-named respondent late on 28 August 2007 by fax and as it later transpired that the first-named respondent was on holiday from 25 August 2007 did not give the first-named respondent a realistic chance to be heard on the issue of the adjournment.

A general survey of the authorities cited supported Mr Potter's contention. In the case of Mills and Johnson where an appellant faxed the tribunal stating that she would be unable to attend as she was in Greece and the tribunal gave no consideration to adjournment of the hearing and in fact did not respond to the fax to state that there was a problem with her non-appearance as requested by the appellant, it was held that "in the circumstances, she ought to have been advised of her right to seek an adjournment. By not granting the adjournment the tribunal had failed to take into account a relevant factor, namely that the respondent had also failed to enter an appearance and therefore no injustice would have been caused to either party by an adjournment. In the proper exercise of its discretion, the tribunal ought to have granted an adjournment in the circumstances of the case".

In the case of Teinaz v Wandsworth London Borough Council it was held that:-

"Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. In order to comply with the right to a fair trial under Article 6 of the European Convention on Human Rights, a litigant whose presence is needed for the fair trial of a case but who is unable to be present through no fault of his own will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. However, the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such adjournment."

In this case, Mr Potter contended that the tribunal should have acted immediately it received the letter of 23 August 2007 to take its decision and communicate it to the first-named respondent. If there had been doubts concerning the genuineness of the application, at that point it would have been possible for the first-named respondent to provide evidence of his holiday. However, this did not happen.

In the case of Andreou v Lord Chancellor's Department, Mrs Andreou asked for a postponement of the hearing on the grounds that she would not be able to attend because of her ill-health. She provided a certificate from her General Practitioner. In that case the tribunal refused the application but said it could be renewed at the hearing. At the hearing, the tribunal concluded that it could not decide the matter on the basis of the medical evidence supplied and adjourned the hearing for one week on the basis that Mrs Andreou was to provide a medical report answering four specific questions by a certain time limit. In this case such a course of action was not considered by the tribunal.

However, in the Andreou case it was also pointed out:-

" … fairness to other litigants may require that indulgence is given to those who have had an opportunity to justify an adjournment but have not taken that opportunity adequately or not extended."

In this case, the tribunal was not satisfied that the first-named respondent had himself acted quickly to draw to the attention of the tribunal that there was a difficulty with the hearing date. It was not disputed that he was aware of the hearing date from and including 14 August 2007, which was the date upon which it was not denied that the Notice of Hearing had been received. Yet it appeared from the office file that his application to the tribunal was made by a letter dated 15 August 2007 which was only posted on 22 August 2007 and hence received by the tribunal on 23 August 2007. Given that there was this lapse of time on the part of the first-named respondent and that the letter did not make plain when precisely the first-named respondent was to be unavailable, it was understandable that the tribunal reached the decision it did given the position in which it was placed by the delay of the first-named respondent.

However, notwithstanding the foregoing, the tribunal considers that the first-named respondent was not given a proper opportunity to be heard on his application for adjournment and this was the reason why the decision was taken in his absence. This being the case, with some reluctance, we revoke our decision and direct that this case be re-heard before a newly-constituted tribunal.

Costs

The tribunal had much sympathy with Mr Coll's application for costs on behalf of the claimant in respect of the hearing of 14 December 2007 and the hearing of 22 February 2008, but considers in all the circumstances of the cases that it would be preferable for this to be heard by the tribunal which eventually decides this case. The tribunal had regard in reaching the decision on this point to the case of Costellow v Somerset County Council which stated:-

"In the ordinary way and in the absence of special circumstances, such as procedural abuse, questionable techniques, contumelious and intentional default or where a default was repeated or persisted in after a peremptory, the court should not exercise its inherent jurisdiction to dismiss a plaintiff's for want of prosecution unless the delay complained of after the issue of the proceedings had caused at least a real risk of prejudice to the defendant."

It is a fundamental principle of natural justice that both sides be heard and this is why we are revoking the decision.

Future listing

The parties should inform the tribunal within 14 days of the date of issue of this decision of an agreed date for hearing this case. If this period of 14 days passes without a date being agreed, the parties must inform the tribunal of the dates upon which it is not suitable for this matter to be re-listed within a further period of seven days from the date of expiration of the 14 day period. If the seven days period expires without notification of unsuitable days for listing, the tribunal will list this matter for re-hearing without any further reference to the parties.

Chairman:

Date and place of hearing: 22 February 2008, Belfast

Date decision recorded in register and issued to parties: