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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Nixon v SG Logistical Limited [2011] NIIT 01870_10IT (23 June 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01870_10IT.html
Cite as: [2011] NIIT 01870_10IT, [2011] NIIT 1870_10IT
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THE INDUSTRIAL TRIBUNALS
Case Ref: 1870/10
CLAIMANT: Fred Nixon
RESPONDENT; SG Logistical Limited
DECISION ON THE PRELIMINARY CONSIDERATION OF AN APPLICATION FOR A REVIEW
The decision is that the application for a review is refused, for the reasons set out below.
CHAIRMAN: Mr William A Palmer
GENERAL
1. This is the preliminary consideration of an application for the review of a decision (“the decision”) made by an industrial tribunal, of which I was chairman.
2. The tribunal found in the claimant’s favour and awarded him overall compensation of £9,459.88, in respect of unfair dismissal, notice pay, outstanding wages and holiday pay.
3. (1) Rule 35(3) of the Industrial Tribunals Rules of Procedure (the Rules), contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (the Regulations), provides as follows, insofar as relevant:
“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…..and that [chairman] 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.”
(2) I am, therefore, the person to consider the application and I am required to refuse it if I consider that there are no grounds for the decision to be reviewed under rule 34(3) of the Rules or there is no reasonable prospect of the decision being varied or revoked.
4. No response was entered, to the substantive proceedings, on behalf of the respondent and, therefore, under the provisions of rule 9 of the Rules the respondent was not entitled to take part in the proceedings, and it did not do so.
5. As a result of no response having been entered, and as will be seen later, the grounds of review referred to in Rule 34(3) of the Rules are restricted.
CONSIDERATION OF THE APPLICATION
6. I shall first of all consider whether the person making the application has the status to do so.
7. Mr Hanna is a former director of the respondent and it is he who has made the application for a review
8. Having read the application for a review, which was contained in a letter from Mr Hanna, I requested the Office of the Industrial Tribunals (“the office”) to write a letter (“the letter”) to Mr Hanna seeking further information in relation to the application, which the office did. Mr Hanna did not reply. A reminder was sent to him and there was no response to that either. One of the matters contained in the letter related to Mr Hanna’s status in bringing the review application. The second paragraph of the letter reads as follows:
“It appears, from the application for a review, that currently you have no connection with the respondent, namely, SG Logistical Ltd. You state, in the second paragraph of the application, ’I’m no longer a director of SG Logistical’ and in the penultimate paragraph that you and Mr Crowe, ‘are no longer directors of the company’. In light of this, the chairman requests that you clearly set out the status that you consider enables you to seek a review on behalf of the respondent, which is a legal person in its own right.”
9. On the information before me, I consider that Mr Hanna does not have the standing to bring a review application: he is now a stranger to the matter. On this ground I refuse the application.
10. Lest I am wrong on the matter of standing, I shall consider the full application.
11. (1) The following was set out in the letter:
“Rule 9(b) of the Rules provides, insofar as relevant:
“A respondent who has not presented a response to a claim…..shall not be entitled to take any part in the proceedings except to -
(b) make an application under rule 35 (preliminary consideration of application for review) in respect of rule 34(3) (a), (b) or (e)”
Rule 34(3) (a), (b) and (e), insofar as relevant, provides as follows;
“…….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;
(e) the interests of justice require such a review.” (Emphasis added).
Rule 35(2) of the Rules states that the application for a review must be in writing and must identify the grounds of the application and provide details of the grounds so identified.
You may wish to consider these rules and state the ground or grounds on which the application is based. Also, you may wish to identify the details contained in the application that you consider supports the ground or grounds identified.”
(2) No reply was received. The text of rule 35(2), as amended, states, insofar as relevant:
“The application must be in writing and must identify the grounds of the application in accordance with rule 34(3) and provide details of the grounds so identified…….”
(3) It seems to me that the word “must” is expressing necessity. In other words there is an obligation/requirement to include the ground(s) upon which the application is based. The grounds, in a case such as the present one where no response was entered on behalf of the respondent are restricted, as pointed out in the letter [See paragraph numbered 11(1) above where the relevant provisions, insofar as relevant, of rule 9(b) and rule 34(3)(a), (e) and (c) of the Rules are set out].
(4) Mr Hanna was given an opportunity to set out the grounds on which the application was based and did not avail himself of that opportunity.
(5) I, therefore, reject the application as the grounds have not been disclosed. However, in case I am wrong in this, I shall consider other aspects relating to the application.
12. (1) In relation to an application for a review, rule 35 (1) of the Rules provides as follows, insofar as relevant;
“An application…..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 it just and equitable to do so.”
(2) Regulation 11(2) of the Regulations provides, insofar as relevant, as follows:
“Where an act must be done within a certain number of days of or from an event, the date of that event shall not be included in the calculation…..”
(3) The decision was sent to the parties, namely, Mr Nixon and SG Logistical Limited, on 9 February 2011 and the application under consideration was received on 15 March 2011. The application was, therefore, out of time.
(4) In the letter of application it is stated, “Firstly you will probably receive this response outside the time stipulated, my reason for this is because I’m no longer a director of SG Logistical and only received this correspondence on the 21/02/11”. Mr Hanna, therefore, received the decision 2 days prior to the expiry of the time limit. He does not state from whom he received the decision. I consider that he received it from the respondent. I have no reason to believe that the decision was not delivered to the respondent in the normal course of the post.
(5) In the letter the provisions of rule 35(1) of the Rules and regulation 11(2) of the Regulations, both of which are referred to above, were set out. It was also stated in the letter as follows:
“You will have noted that under rule 35(1), which is set out above, that the chairman may extend the time limit referred in circumstances where he considers that it would be just and equitable to do so. You may wish to refer the chairman to matters that you consider relevant to the exercise of his just and equitable jurisdiction.”
(6) No reply was received. There is insufficient information before me to exercise the “just and equitable” jurisdiction in the respondent’s favour and, therefore, I decline to extend time. The application is, therefore, rejected as being out of time.
13. In the application Mr Hanna takes issue with many of the facts found by the tribunal. The respondent had the opportunity to enter a response to the proceedings and, as a result, would have been permitted to call relevant evidence had it wished to do so. It did not avail itself of this opportunity. It is too late now to raise these issues.
14. (1) In the second and third paragraphs of the letter of application, Mr Hanna states as follows;
“My first point is that I received some documentation on the 11/08/10. It was incorrectly addressed to a firm called SE Logistics Ltd, although my name was attached to the letter I seen fit to open it and read the contents. I telephoned on more than one occasion to speak to the case officer and was informed that someone would be in touch, I also pointed out that the adm error and was told that this would be amended accordingly, I received no amended paperwork nor was I contacted by anyone to discuss the case. Next correspondence was via a telephone call the day before the case was due, to hear my side of the claim. This surprised me as I was away on business and unable to make it back to attend the hearing. I informed (sic) by the individual that someone would get back to me, unfortunately I cannot remember the name of the female I was talking to on the phone that day.
My next correspondence was the outcome of the tribunal”
(2) In the originating application the respondent’s name is given as “Stephen Hanna SE Logistical Ltd”. It should have been “SG Logistical Ltd”. However, it would have been clear (beyond peradventure) from the body of this application that it was the company, of which Mr Hanna was a director at the time, namely, SG Logistical Limited, that the ex-employee and claimant, Mr Nixon, was aiming his complaint. In paragraph 1.1 of the response, the respondent could have set out the proper name of the respondent, but chose not to enter a response. There are no notes on the office file relating to any telephone calls received from Mr Hanna. It is the custom of the office to keep notes of conversations with parties or their representatives. In particular, I am satisfied that the matter of a telephone call with regard to the hearing would have been noted on the file. There are no notes, on the office file, relating to the matters referred to by Mr Hanna. I am not satisfied, taking account of all the circumstances, that Mr Hanna could reasonably be found to have been in contact with the office as alleged.
15. The application is refused for the following reasons:
(a) The applicant, Mr Hanna, does not have the standing to make the application;
(b) The grounds of the application have not been provided;
(c) The application is out of time and there is insufficient information for me to exercise the “just and equitable” jurisdiction conferred on me to extend time; and
(d) In accordance with rule 35(3) of the Rules, I consider that there are no grounds for the decision to be reviewed under rule 34(3) of the Rules, namely, that the decision was made as a result of an administration error, the respondent did not receive notice of the proceedings leading to the decision or that the interests of justice require a review.
Chairman:
Date and place of hearing:
Date decision recorded in register and issued to parties: