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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Topping v Peter Scott T/A Summit Printin... [2010] NIIT 01069_10IT (17 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/01069_10IT.html
Cite as: [2010] NIIT 1069_10IT, [2010] NIIT 01069_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1069/10
CLAIMANT: Philip Topping
RESPONDENT: Peter Scott T/A Summit Printing
REVIEW DECISION
The decision of the tribunal is that the claimant’s application for a review is granted and the decision to dismiss his claim is revoked
Constitution of Tribunal:
Chairman (sitting alone): Mr I Wimpress
Appearances:
The claimant was unrepresented and appeared on his own behalf.
The respondent did not appear and was not represented.
1. The claimant’s claim for a redundancy payment was listed before me on 11 June 2010 together with similar claims by two of the claimant’s former co-workers. The claimant did not attend the hearing and was not represented. The tribunal’s file was checked by me and it revealed that the tribunal office had sent the claimant a Notice of Hearing at his normal address under cover of a letter dated 27 April 2010. At my direction the clerk attempted to contact the claimant by telephone on his land line and on his mobile telephone but without success. The clerk reported that there was no answer on the claimant’s mobile telephone and no answer service. The line appeared to be dead and there was no answer on the land line. In these circumstances I determined that the appropriate course was to dismiss the claim for want of prosecution. A decision was issued by me to this effect.
2. On 28 June 2010, the claimant sent a letter to the tribunal office as a result of receiving my decision. In the letter, the claimant stated that he did not receive a letter from the tribunal office informing him that there was a hearing and that he had received no messages on his mobile telephone or land line. The claimant concluded his letter by asking for another date to be fixed for the hearing of his claim.
3. The claimant’s letter was treated as an application for a review. Applications for reviews of tribunal decisions are governed by Rules 33 to 37 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Regulations”). The relevant rules for the purposes of this application are as follows:-
34. - (1) Parties may apply to have certain decisions made by a tribunal or a chairman reviewed under this rule, and rules 35 and 36. Those decisions are –
(a) a decision not to accept a claim, response or counterclaim;
(b) a decision which is a final determination of the proceedings or a particular issue in those proceedings (other than a default judgement but including an order for costs, allowances, preparation time or wasted costs); and
(c) a decision made under rule 5(3) of Schedule 5.
(2) In relation to a decision not to accept a claim or response, only the party against whom the decision is made may apply to have the decision reviewed.
(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only –
(a) the decision was wrongly made as a result of an administrative error;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party;
(d) 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 of or foreseen at that time; or
(e) the interests of justice require such a review.
(4) A decision not to accept a claim or response may only be reviewed on the grounds listed in paragraph (3)(a) and (e).
(5) A tribunal or chairman may on its or his own initiative review a decision made by it or him on the grounds listed in paragraph (3) or (4).
(6) In this rule, rules 35 and 36, "decision" means a decision mentioned in paragraph (1).
35. - (1) An application under rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.
(2) The application must be in writing and must identify the grounds of the application in accordance with rule 34(3), but if the decision to be reviewed was made at a hearing, an application may be made orally at that hearing.
(3) The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the tribunal which made the decision or, if that is not practicable, by –
(a) any chairman nominated
by the President or the
Vice-President; or
(b) the President or the Vice-President, and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.
(4) If an application for a review is refused after such preliminary consideration the Secretary shall inform the party making the application in writing of the chairman's decision and his reasons for it. If the application for a review is not refused the decision shall be reviewed under rule 36.
36. - (1) Where a party has applied for a review and the application has not been refused after the preliminary consideration mentioned in rule 35, the decision shall be reviewed by the chairman or tribunal who made the original decision. If that is not practicable a different chairman or tribunal (as the case may be) shall be appointed by the President or the Vice-President.
(2) Where no application has been made by a party and the decision is being reviewed on the initiative of the tribunal or chairman, the review must be carried out by the same tribunal or chairman who made the original decision and –
(a) a notice must be sent to each of the parties explaining in summary the grounds upon which it is proposed to review the decision and giving them an opportunity to give reasons why there should be no review; and
(b) such notice must be sent before the expiry of 14 days from the date on which the original decision was sent to the parties.
(3) A tribunal or chairman who reviews a decision under paragraph (1) or (2) may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing a new hearing must be held.
4. Having considered the claimant’s letter of 28 June 2010, I determined not to refuse the application for a review under Rule 35(3). The application was therefore listed before me for hearing.
5. In his evidence to the tribunal the claimant confirmed that the contact details given in his claim form were correct and it clear from the tribunal file that the letter of 27 April was sent to the correct address. The claimant had also received a previous letter of 16 April 2010 sent by the tribunal office to that address without difficulty. The claimant was not aware of any particular postal difficulties in the area in which he resided and could not recall any previous occasion on which mail that had been expected had gone missing. He got on well with his neighbours and was confident that if any of them had received his correspondence in error they would pass it in to him. The claimant lived with his mother, brother and sister and their home had a standard letter box. Having received the tribunal’s letter of 16 April 2010, he was expecting further correspondence notifying him of the hearing date and made a point of asking them if there was any post for him for this reason. He could think of no reason why the letter did not reach him but adamant that it had not. He only realised that there was a problem when he received the tribunal’s letter advising him that his claim had been dismissed. It is also material to note that the letter was not returned to the tribunal office as undelivered.
6. With regard to the attempts to contact the claimant by telephone, the claimant gave evidence that he did not bring his mobile telephone into work but left it in his car. However, he always checked for missed calls or messages and was not aware of there being any on the day of hearing. The claimant’s land line had a Sky answering service and again the claimant was not aware of any missed calls or messages.
Conclusions
7. As the authorities make clear, it is difficult for a party to successfully apply for a review on the ground that he did not receive a Notice of Hearing. Rule 27 of the 2005 Regulations provides as follows:
8. Rule 60 of the 2005 Regulations provides as follows:
“60. - (1) Any notice given or document sent under these Rules shall (unless a chairman or tribunal orders otherwise) be in writing and may be given or sent –
(a) by post;
(b) by fax or other means of electronic communication;
(c) through a document exchange in accordance with paragraph (6); or
(d) by personal delivery.
(2) Where a notice or document has been given or sent in accordance with paragraph (1), that notice or document shall, unless the contrary is proved, be taken to have been received by the party to whom it is addressed –
(a) in the case of a notice or document given or sent by post, on the day on which the notice or document would be delivered in the ordinary course of post;
(b) in the case of a notice or document transmitted by fax or other means of electronic communication, on the day on which the notice or document is transmitted;
(c) in the case of a notice or document which is left at a document exchange in accordance with paragraph (6), on the second business day following the day on which it is left; and
(d) in the case of a notice or document delivered in person, on the day on which the notice or document is delivered.
9. In accordance with normal practice the Notice of Hearing was sent to the claimant’s address by ordinary post. The presumption of service contained in Regulation 60(2) means that in order to succeed the claimant would have to prove that he did not receive the Notice of Hearing and proving a negative is notoriously difficult. However, the claimant struck me as a patently honest witness and having heard his evidence I believe that had he received the Notice of Hearing he would have spared no effort to attend the hearing. On the basis of the claimant’s evidence I am satisfied that he did not receive the Notice of Hearing for reasons that are likely to remain unknown and that he has succeeded in rebutting the presumption in Regulation 60(2).
10. In these circumstances, the appropriate course is to grant the application for a review and revoke the decision to dismiss the claim. The claimant’s claim will therefore be reinstated and a fresh date set for hearing.
Chairman:
Date and place of hearing: 30 July 2010, Belfast.
Date decision issued to parties: