Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Fitzpatrick v Cassells Fresh Supplies Ltd... [2012] NIIT 02200_11IT (05 April 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/02200b_11IT.html
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 2200/11
CLAIMANT: Michael Fitzpatrick
RESPONDENT: Cassells Fresh Supplies Limited
DECISION ON AN APPLICATION FOR REVIEW
It is just and equitable to extend the 14 day time limit for presenting the request for a review. However 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 24 January 2012 on the grounds that it has no reasonable prospect of being varied or revoked.
Constitution of Tribunal:
Chairman (Sitting alone): Ms J Knight
Reasons
1. The Hearing of the claimant’s originating claim took place on 13 December 2011. The tribunal (Chairman Sitting Alone) promulgated its decision on 24 January 2012 dismissing the claimant’s claims for holiday pay and notice pay.
2. The claimant wrote to the tribunal seeking a review of the decision due to a number of matters which may be summarised as follows:-
i. The claimant is able to secure further information to prove that he had taken annual leave on the days listed in his work diary.
ii. That the tribunal was wrong to hold that the days taken by the claimant between 29 August 2011 and 9 September 2011 should be classified as annual leave rather than statutory paternity leave.
iii. That the tribunal was wrong to find as a fact that the claimant did not give one week’s notice of termination of his employment.
iv. That the decision did not record that there was a short adjournment to enable the respondent to provide records relating to leave taken by the claimant and that when the hearing resumed Mr Cassells told the tribunal that he could not locate these records, which was evidence that Mr Cassells had lied to the tribunal.
v. That it was omitted from the reasons that the claimant had been “poached” from his previous employer on the same terms and conditions he enjoyed in his previous employment.
vi. That the claimant’s wife who accompanied him to the hearing was not permitted to offer contribution to the discussion even though she wanted to as she was not sworn in to give evidence.
vii. An allegation by the claimant of misconduct on the part of one of the respondent’s witnesses, which was not raised at the hearing and which in the claimant accepts “does not pertain to the case but it is only fair that you are aware of this”.
3. The claimant’s request for a review was received by the Office of the Tribunals on 9 February 2012, two days outside the 14 day time limit which expired on 7 February 2011. The Office of the Tribunals wrote to the claimant on the direction of the Chairman to request that he should provide written reasons for the lateness of his request, so that consideration may be given to whether it is just and equitable to extend the time for presenting the application for review.
4. The claimant replied by letter dated 1 March 2012 in which he stated that the reason for the request for review being submitted out of time was because, having read the explanatory notes which accompanied the decision, he had originally applied to appeal against the decision but was advised by a member of the Labour Relations Agency on 9 February 2012 that he could not apply for an appeal but should instead request a review. At this stage it was already outside of the 14 day time limit for the review. In his letter to the Office of the Tribunal the claimant accepts that he had read the guidance which accompanied the decision. The claimant states that he was “unintentionally late due to the confusion between an appeal and review”.
5. The Explanatory Notes which accompanied the Decision state “These notes are intended to assist parties in understanding the implications of the decision but they are not in any sense, a complete or authoritative statement of the law. You should read them carefully, in particular the time limits set out in paragraphs 6, 10, 11 and 14 below for seeking a review of the decision and/or appealing against it on a point of law”. These paragraphs contain information about the circumstances in which a party may apply for a review and/or to lodge an appeal on a point of law and the applicable time limits in each case. The guidance suggests that parties may wish to seek legal advice on what constitutes a point of law.
LAW
6. Rule 35(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Rules”) provides that an application for review must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties. However the 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.
7. The onus is on the party requesting a review to convince the tribunal that it is just and equitable to extend time. The tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension and to have regards to all the other circumstances in particular:-
a) the length of and reasons for the delay;
b) the extent to which the accuracy of the evidence is likely to be affected by the delay;
c) the extent to which the parties sued had co-operated with any requests for information;
d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and
e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew the possibility of taking action. (British Coal Corporation v Keeble 1997 IRLR 336 at Paragraph 8).
8. Rule 34 (3) of 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 may only 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”.
9. 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.
10. 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.
11. 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
12. Having considered carefully the claimant’s reason for lodging his request for a review outside of the time limit set out in the 2005 Rules, I am satisfied on a balance of probabilities and in balancing the possible prejudice to the parties, in all the relevant circumstances, that it is just and equitable for me to extend the 14 day time limit and that I should give preliminary consideration to the claimant’s request for a review in accordance with Rule 35(3).
13. The claimant wishes to adduce “additional evidence” such as bank statements to prove that he took as annual leave the days listed in his work diary as referred to in paragraph 2 (i) above. Clearly such evidence would have been in existence at and could have been produced by the claimant at the hearing. However it was not necessary for the claimant to produce this additional evidence at the hearing and had it been produced it would not have made a difference to the decision reached. The tribunal accepted the claimant’s evidence that he had taken leave on the days on a list compiled from his work diary. The fact that the claimant took this leave however is not in itself proof of an agreement between the claimant and the respondent concerning his terms and conditions of employment. In the absence of documentary evidence of such agreement, in circumstances where the respondent’s witnesses, strongly disputed that there was an agreement that the claimant could take 35 days’ annual leave, the tribunal was obliged to apply the provisions of Working Time Regulations in calculating the amount of the claimant’s leave entitlement. Similarly the tribunal accepted the claimant’s evidence that he and his wife considered the leave taken by him following the birth of his second child to be “paternity leave”. However the claimant agreed in his evidence that he had not complied with the statutory notice requirements for claiming paternity pay and therefore the tribunal was required to compute this as leave taken under the Working Time Regulations. The amount of leave taken by the claimant was fully explored at the hearing and I do not consider that the evidence that the claimant now wishes to introduce constitutes new evidence under Rule 34(d) or that the interests of justice require a review under Rule 34(e) on this basis.
14. The claimant also appears to suggest that the hearing was conducted unfairly. It is correct that I asked the claimant’s wife not to interrupt while sworn evidence was being given by the claimant and the respondent’s witnesses. However I made clear that I would listen to any relevant evidence of any witness that the claimant wished to call. At the conclusion of the case the claimant stated that he had said everything that he could think of to say, otherwise he would just go on repeating himself all day.
15. The claimant further appears to assert in the matters referred to at paragraph 2(ii) – (vii) above that my decision was perverse and that it failed to make relevant findings of fact and made wrong findings of fact and as such was one that no reasonable tribunal properly addressing itself on the law could come to. Whereas I understand that the claimant strongly disagrees and is disappointed with my findings and conclusions, I consider that these matters now raised by the claimant do not come within the meaning of Rule 34 (3) (e) and that if the claimant wishes to challenge the tribunal’s decision on this basis, the proper course would be for him to appeal to the Court of Appeal on a point of law.
16. I have not taken into consideration the allegation of misconduct on the part of one of the respondent’s witnesses as the claimant concedes that it is irrelevant to his case.
17. I am satisfied that it is not appropriate to review the decision of the Tribunal as in my view it has no reasonable prospect of success under either Rule 34(3)(d) or (e) of being varied or revoked.
Chairman:
Date Issued to the Parties: