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THE INDUSTRIAL TRIBUNALS

CASE REF: 1128/11

CLAIMANT: Hugh Gorman

RESPONDENT: MMD Communications Ltd

DECISION ON AN APPLICATION FOR REVIEW

In exercise of the power conferred on me by Rule 35(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, I refuse the application for a review of the decision of the tribunal promulgated on 12 January 2012 on the grounds that there is no reasonable prospect of the decision being varied or revoked.

Constitution of Tribunal:

Chairman: Ms J Knight

Reasons

The Decision

1. The Hearing of the claimant’s originating claim took place on 8 and 17 November 2011. The tribunal promulgated its decision on 12 January 2012 and unanimously held that it did not have jurisdiction to entertain the claimant’s complaint of breach of contract as the originating claim was presented outside the statutory time limit prescribed by Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (“the 1994 Order”). The tribunal declined to exercise its discretion to extend the time limit for the presentation of the claim because it was not satisfied that the claimant had shown that it was not reasonably feasible for the complaint to be presented within the applicable time limit.

Application for Review

2. The claimant sent an email to the tribunal dated 26 January 2012 “Re: Appeal on the basis new evidence to support my case in relation to the time extension”. This email was treated by the Office of the Tribunals as an application for review of the decision of the tribunal. In support of his application the claimant attached his “claim paperwork pages 1-13”. This paperwork comprised a copy of an originating claim form apparently completed and signed by the claimant on 9 May 2011.He drew attention to pages 7,8 and 9 of the copy claim form attached to his application for review which at Paragraph 6, “Important Statutory Procedures before making a claim” specified “You are legally required, in most cases to raise your grievance in writing with your employer/respondent and then allow 28 days before presenting your claim to the Office of the Tribunals.” The advice lists the types of claim where the statutory procedures must be followed, including breach of contract. It is further stated: “If you have followed the statutory dispute resolution procedures by raising the subject matter of your complaint(s) in writing with your employer/respondent and you do this before the normal time limit for presenting your tribunal claim expires (there are different time limits for different matters), then the time limit for presenting your claim to the Office of the Tribunals will automatically be extended for a further 3 months.”

3. The claimant ostensibly seeks a review of the tribunal’s findings that he had been under a misapprehension about the correct time limit on the basis that “It is not that I did not look into this fully; it is that I read these instructions, which I clearly followed. If it is said that these should be interpreted differently, then the said text should be clearer for claimants.”

Law

4. Rule 34 (3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Rules”) makes provision for the review of decisions on five specific grounds. It appears to me that the claimant’s application for review should be considered under the following grounds:

(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.”

The two grounds are not mutually exclusive but in order for a case to succeed under paragraph (e) where a review has been refused under paragraph (d) there must be “some special additional circumstance” or “some mitigating factor” to lead to the conclusion that justice does in fact require a review. (Per Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277). In that particular case it was held that the application to review did not fall within paragraph (d) because the evidence sought to be adduced in support of the application had been within the knowledge of the employee at the time of the original hearing and was not introduced at that stage. It was held that neither did the application fall within paragraph (e) because the decisions of Industrial Tribunals should, in the interests of justice and the general public, be as final as possible and only in unusual circumstances, which were not present in that case, should the parties be allowed to invoke that paragraph.

Rule 34 (3)(e) confers a wide discretion on Industrial Tribunals which must be exercised judicially and with regard, not just to the interests of the party seeking the review, but also the interests of the other party and to the public interest requirement that there should, as far as possible, be finality of litigation. Tribunals must seek to give effect to the overriding objective of dealing with cases justly when exercising their discretion which requires the application of recognised principles to the particular circumstances of the case.

5. Rule 35(3) provides that 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 person shall refuse the application if he considers that there are no grounds for the decision to be reviewed or there is no reasonable prospect of the decision being varied or revoked.

Conclusions

6. In giving preliminary consideration of the claimant’s application, it is noted that the copy of the claim form which is now attached to the claimant’s application for a review is not in fact a copy of the claim form which was submitted by the claimant electronically to the Office of the Tribunals on 9 May 2011. The claim form which was actually submitted and which was before the tribunal at the hearing does not include breach of contract in the list of matters in respect of which a claimant is required to follow the statutory procedures.

7. The time limitation issue was dealt with at the hearing and indeed was raised at the very beginning of the hearing as a jurisdictional issue. The tribunal decided at the outset, with the agreement of the parties, that it was in the interests of justice that the tribunal should not deal with the time limit issue in isolation as a preliminary point but should hear the entire evidence in the case before reaching its conclusions. The reasons given by the claimant for the late submission of his originating claim were that he was in a pretty dark place and was not in the right frame of mind and that he had relied on information on the OITFET website which led him to believe that he had three months from the date of his appeal against dismissal to lodge his originating claim. The claimant was unable to specify the nature of the information on the website and made no reference whatsoever to the document now appended to the review application, which was apparently completed by him on 9 May 2011 in addition to the originating claim form actually submitted. The claimant did not apparently avail of the opportunity to review his own paperwork during the course of the hearing, which could not be completed in one day on 8 November 2011 as originally listed but was reconvened for a second day on 17 November 2011. (Although in the intervening period the claimant did obtain and submit to the tribunal further documentation relevant to the substantive issues.)

8. In my view, the document attached to the claimant’s email of 26 January 2012 does not constitute new evidence within the meaning of Rule 34(3)(d). Although it was not produced by the claimant at the Hearing, the document is dated 9 May 2011 and therefore would have been both reasonably within the claimant’s knowledge and in existence prior to the Hearing. The claimant did not avail of the opportunity to bring this document to the attention of the tribunal at the Hearing and it appears to me that the claimant is now making a different case about what he was led to understand to the one he made at the hearing. The tribunal made its findings of fact and conclusions on the time limitation issue, on the basis of the evidence before it and took account of the claimant’s submissions on this point. In view of this and having regard to the need for finality of litigation I am satisfied that the interests of justice do not require a review of the tribunal’s decision.

9. I refuse the claimant’s application for review as I consider that there is no reasonable prospect of the decision being varied or revoked under either Rule 34(3)(d) or (e).

Chairman:

Date Issued to the Parties: