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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hall v Ballymurphy Womens Centre [2009] NIIT 282_08IT (19 March 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/282_08IT.html
Cite as: [2009] NIIT 282_08IT, [2009] NIIT 282_8IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 282/08
CLAIMANT: Briege Hall
RESPONDENT: Ballymurphy Womens Centre
DECISION ON APPLICATION FOR REVIEW
The unanimous decision of the tribunal is that:-
The application for a review of the decision is granted.
The matter be listed for hearing with a time estimate of three days.
Not less than fourteen days before the date listed for hearing, each party is to serve on the other party one copy of a paginated bundle containing copies of all documentary information which they will seek to rely upon at the hearing. At the time of service on the other party, three copies of the paginated bundle are to be filed at the Office of the Industrial Tribunals for the use of the Tribunal at the hearing. Each party is to have available at the hearing, for inspection if required, the original documents which have been copied into their bundle.
Constitution of Tribunal:
Chairman: Mr Travers
Panel Members: Ms Mulligan
Mr McParland
Appearances:
The claimant attended and was represented by Mr Philip Boomer, trade union representative
The respondent was represented by Ms McGrath, Chairperson of the respondent
REASONS
Issues
On 18th September 2008 this matter was listed for the hearing of the claim. On that date the claimant failed to attend and no explanation was offered for her non-attendance.
In the circumstances, the claim was dismissed and this was recorded in a decision issued on 21st October 2008. By letter dated 23rd September 2008, the claimant seeks a review of that decision.
Facts
In her letter the claimant asks for a review on the grounds that she had no notice of the hearing, “as I had changed my telephone number and my address for urgent personal reasons.”
The address on the claim form to which all correspondence was sent by the tribunal by post, including a properly addressed notice of hearing, was the claimant’s father’s address. The tribunal heard evidence from the claimant about the distressing circumstances in which she said that the unlawful and threatening activities of third parties caused her to feel that it was necessary to move house. She said that it was against this background that informing the tribunal of her change of address had escaped her mind.
The claimant told the tribunal that she first heard of the hearing on 18th September when she received a letter from her trade union representative, Mr Boomer, on 20th September 2008. Mr Boomer had assisted the claimant in internal disciplinary proceedings but he was not on the record in the tribunal proceedings. It was said that Mr Boomer had been contacted by the Labour Relations Agency on the day before the hearing and he had been informed that the case was due to be heard the following day.
The Tribunal found unsatisfactory the claimant’s explanation as to why the letter from Mr Boomer reached her promptly and yet earlier correspondence sent to the same address by the tribunal had not been forwarded to her. On the evidence, the Tribunal is unable to make a positive finding that the claimant had not received earlier correspondence from the tribunal notifying her of the hearing date.
The Tribunal is not in a position at present to make any judgement on the merits of the claim and it does not do so. It is noted that the claim and response forms filed in this matter raise real issues as to whether appropriate disciplinary procedures were followed by the respondent in dismissing the claimant.
Law
Rule 34(3) of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 [“the Rules”] provides that a tribunal decision may be reviewed on the following grounds only:-
The decision was wrongly made as a result of an administrative error;
A party did not receive notice of the proceedings leading to the decision;
The decision was made in the absence of a party;
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 or foreseen at that time; or
The interests of justice require such a review.
On behalf of the claimant, Mr Boomer invited the Tribunal to consider the grounds for review set out at rules 34(3)(b),(c), and (e).
The Rules provide at rule 60(2)(a) that where a notice has been sent by post it shall, unless the contrary is proved, be taken to have been received by the party to whom it is addressed on the day on which the notice or document would be delivered in the ordinary course of post.
In order to succeed on the ground that a decision was made in absence of a party, that party must have a good reason for their absence from the hearing. In the circumstances of this case this ground adds nothing to the primary ground advanced by the claimant that she did not have notice of the hearing.
The Tribunal has also considered the overriding objective as set out at regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
Conclusion
The claimant has failed to satisfy the Tribunal on the balance of probabilities that she did not have notice of the hearing. Her application for review under rules 34(3)(b) and (c) therefore fails.
The Tribunal does however exercise its discretion to review the decision under rule 34(3)(e). In deciding to exercise its discretion the Tribunal has taken into account the procedural issues which potentially arise even on the account set out in the response form. The Tribunal has concluded that it is in the interests of justice that these issues should be fully ventilated and determined by a tribunal.
This decision turns entirely on the facts of this particular case and the submissions heard by the Tribunal. It should not be regarded as a precedent or template for other applications for review.
The Tribunal was told that the claimant proposes to rely at hearing only upon her own evidence, Ms McGrath for the respondent suggested that there may be 5 witnesses for the respondent. The Tribunal’s initial view was that a 2 day listing was appropriate but Mr Boomer was firmly of the view that a 3 day listing was more appropriate. In the circumstances the Tribunal directs that the case be listed for hearing on the basis of a 3 day time estimate.
The Tribunal advised the parties of its decision at the conclusion of the review hearing. The issue of documentary evidence at the hearing was discussed and the parties agreed to comply with the direction as to bundles set out at (iii) of the decision above.
Chairman:
Date and place of hearing: 15 December 2008, Belfast
Date decision recorded in register and issued to parties: