Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    400/09

 

CLAIMANT:                      Paul O’Hagan       

 

RESPONDENT:                Norbrook Laboratories Ltd

 

 

DECISION ON A REVIEW

 

It is the unanimous decision of the tribunal that it confirms its decision dated 4 February 2011 in this case.

 

 

Constitution of Tribunal:

 

Chairman:                        Ms W A Crooke

 

Members:                        Ms T Madden

                                        Mr E Hesketh

 

 

Appearances:

 

The claimant appeared in person and represented himself.

 

The respondent was represented by Mr Jacques Algazy, Barrister-at-Law, instructed by Mr Gervase McGenity of Norbrook’s In-house Legal Department.

 

 

THE CLAIM

 

1.       By a letter of 17 February 2011 the claimant sought a review of the tribunal’s decision dated 4 February 2011 and this application was in general brought on the grounds of the interests of justice requiring a review and in particular on the following bases:-

 

          1.       The claimant claimed that his case was that he was dismissed for making “protected disclosures” and that the tribunal should review its decision on the grounds of the interests of justice because this issue was not dealt with.

 

          2.       Lord Ballyedmond, the Chairman of the Company, and his son, Mr Edward Haughey, were aware of the harassment and failed to take action to resolve the matter.

 

          3.       None of the respondent’s witnesses came forward to testify that the information contained in the witness statements was true.

 

          4.       The disciplinary appeal e-mail that was sent to Norbrook on 16 December 2008 was not fully investigated by Mr Mitchell.  He admitted this at the hearing.  There was little or no investigation made into the complaints of Paul O’Hagan.

THE LAW

 

2.       By Rule 30(3)(e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Rules”), a tribunal has power to review its decision on the grounds that the interests of justice require such a review.  Pursuant to Rule 36(1) after a preliminary consideration of the application under Rule 35 of the Rules, the Chairman of the tribunal directed that the matter should proceed to hearing before the tribunal which originally heard the claimant’s case.

 

 

DID THE INTERESTS OF JUSTICE REQUIRE A REVIEW?

 

3.       In answering this question we have dealt with the “review points” set out in the application for review dated 17 February 2011:-

 

          1.       The protected disclosure issue

 

                    The claimant took issue with the tribunal considering that this issue only became evident on the last day of the hearing, when it was raised by the claimant during his submissions.

 

          2.       Mr Algazy confirmed that this had not been raised as an issue by the claimant at any stage in the evidence and only featured as part of his submissions.  The claimant contended in response that his grievance appeal document was the “protected disclosure”.  Mr Algazy also argued that the claimant was not dismissed for making a protected disclosure but for his own misconduct.  He argued that the tribunal had acted properly in seeking to restrict itself to progressing the case in accordance with the 3 tests set out in the case of British Home Stores  v  Burchell [1980] ICR 303.  He confirmed that at no stage did the claimant ever make it clear that he was alleging that he had been dismissed on this ground.  Mr Algazy not only made this submission in respect of the conduct of the hearing but also in respect of the correspondence between the parties prior to the hearing.  He pointed out that a list of agreed issues had been reached between the respondent’s legal representatives and the former legal representatives of the claimant  -  The Elliott Trainor Partnership.  At no stage did the issue of protected disclosure enter into their correspondence or figure as an issue in the list of agreed issues that was reached between the respective legal representatives.  He argued that the proper way to deal with this point had it arisen would have been for the claimant to make an application to formally amend his claim to the tribunal and he did not do so.  The tribunal would then have to enter into the exercise set out in the case of Selkent Bus Company  v  Moore [1996] ICR 836.  He contended essentially, the claimant was trying to re-run his case under another heading.

 

                    The conclusion of the tribunal in respect of this review point was that it did not consider that the interests of justice would be served by allowing the claimant to effectively have a second attempt to run his case under a different heading.  While the tribunal fully agrees with Lord Justice Girvan’s dictum in the case of Peifer  v  Castlederg High School [2008] NICA 49 that Industrial Tribunals must give some latitude to personal litigants who may be struggling in a complex field, the tribunal does not consider that allowing the claimant an opportunity to re-run his case under another heading was in accordance with the terms of the overriding objective set out in Rule 3(1) of the Rules.  Essentially the tribunal considers that to allow the claimant this amount of latitude would mean that the parties would not be placed on an equal footing.  It would not be fair to the respondent and it would cause further expense to the respondent.  Had this been a case in which the claimant had sought to argue that his dismissal was for making a protected disclosure from the outset, and this was a point that was not considered by the tribunal, there would have been some force in the claimant’s application for review.  As it was, the tribunal carried out a careful survey of the notes of the evidence and found that the issue of protected disclosures only came up at the submissions section of the hearing (ie, the end of the hearing).

 

                    The claimant in further support of his application informed the tribunal that the respondent should have known that he was making a protected disclosure and should not have dismissed him.  If that is really the case, the tribunal does not understand why the claimant did not put that point to the witnesses for the respondent.  The tribunal accepted that the claimant made many references to the fact that he had brought a grievance to the respondent, but he did not characterise it as constituting a protected disclosure until the very last day of the hearing.  This being the case, the tribunal considers that it was reasonable to confine itself to investigating the issue for which the claimant was dismissed and applying the confines of the 3 part test of British Home Stores  v  Burchell and then going on to assess whether dismissal was within the band of reasonable responses as set out in the case of Iceland Frozen Foods  v  Jones 1983 [ICR] 17.  For all of the foregoing reasons the tribunal considers that the interests of justice would not be served by allowing the claimant in these circumstances to
re-run his case under a different heading.

 

          3.       Further to his arguments on this point the claimant cited a number of legal requirements contained in a variety of European Regulations and local statutes.  As the tribunal was not looking at the issue of whether or not the respondent had complied with legislation in the human and veterinary medicine areas, the tribunal has disregarded these pieces of legislation in reaching its decision on this point.

 

          4.       Edward Haughey and Lord Ballyedmond being aware of harassment and failing to deal with it.

 

                    The tribunal considers that the origin of this review point was contained in an allegation made by the claimant in the course of the hearing that Lord Ballyedmond and his son, Mr Haughey, had orchestrated a conspiracy against the claimant which permeated down through the company and led to (in the submission of the claimant) various members of the respondent’s workforce lying about the claimant.  Whilst it appeared to the tribunal that the claimant had sent an e-mail to Lord Ballyedmond on 19 March 2008 about the progress of certain issues, the tribunal was not able to find any evidence that this had generated a campaign against the claimant which led to the claimant being dismissed.  It was the claimant who raised grievances against various members of the respondent’s workforce.  This was generated by the claimant and it was during the investigation of the claimant’s grievance that it became manifestly obvious to the investigating body that the claimant himself had been guilty of considerable misconduct in his behaviour to his fellow employees.  The claimant’s misconduct was investigated, he was given a disciplinary hearing and an appeal.  He was dismissed for his own misconduct and the tribunal did not find any evidence of any quality that would allow it to find to the contrary.  Therefore, on this review point the tribunal does not consider that the interests of justice would be served by allowing the claimant a review of the tribunal’s original decision.

 

          5.       None of the respondent’s witnesses came forward to testify that the information contained in the witness statements was true.

 

                    This was a complaint that the claimant reiterated repeatedly during the hearing.  The respondent had at the request of Mr S A Crothers, the Chairman who conducted the relevant Case Management Discussions in the case, provided the claimant with a copy of the decision in a case of Rogan  v  South Eastern Health and Social Services Trust [2009] NICA 47.

 

                    The tribunal also did so at an early stage in the hearing and on a number of occasions throughout the hearing summarised the relevant portions of that judgment and how it affected the claimant’s position.  More than that, the tribunal allowed the claimant time to consider and digest the guidance contained in this decision and to seek clarification about his position under this judgment from the Labour Relations Agency.  Despite that the claimant repeatedly flouted the tribunal’s rulings that the tribunal, as a result of this judgment, was not permitted to re-run and independently hear all the witnesses who had given witness statements to the respondent during the investigation of the claimant’s misconduct.  The tribunal pointed out that it was not permitted to do so and not only that, but the respondent’s representatives were not permitted to put these witnesses forward to the tribunal.  The tribunal suggested to the claimant that as he was having difficulty in complying with the tribunal’s ruling on this point that he was at liberty to take legal advice about challenging the tribunal’s rulings in the High Court.  After time was given to the claimant to consider this issue, the claimant indicated that he was not prepared to do so and that he wished the hearing to proceed.  When the claimant was reminded of this during the application for review hearing, he accepted that this was the case and withdrew this review point.

 

          6.       A disciplinary appeal e-mail was not fully investigated by Mr Mitchell and this was admitted by him at the hearing.

 

                    Mr Algazy submitted that the claimant was simply wrong in making this point.  As it was not challenged by the claimant that Mr Mitchell had taken 5 weeks to investigate pursuant to the claimant’s appeal, and upon the tribunal checking their notes of the hearing, and being unable to find any such admission, the tribunal did not consider that the interests of justice would be served by allowing a review of its decision on this point.

 

          7.       For all of the foregoing reasons the tribunal unanimously confirms its original decision of 4 February 2011 in this case.

 

 

Chairman:

 

Date and place of hearing:              20 May 2011.

 

Date decision recorded in register and issued to parties: