Industrial Tribunals Northern Ireland Decisions

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Cite as: [2012] NIIT 02311_10IT, [2012] NIIT 2311_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2311/10

2391/10

CLAIMANT: Joanne Mary Christie

RESPONDENT: Seacourt Community Council

DECISION ON A REVIEW

The unanimous decision of the tribunal is that the application for a review of the tribunal’s decision is not granted and the decision is affirmed in its entirety

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr W Irwin

Mr J Hughes

Appearances:

The claimant appeared and represented herself at hearing

The respondent was represented by Mr M Corkey, Barrister-at-Law, instructed by McIvor Farrell, Solicitors

INTRODUCTION

1. This is an application for a review of the decision of the tribunal (“the decision”) promulgated on 5 August 2011, whereby the tribunal, by unanimous decision, found the claimant’s respective complaints of unfair dismissal, unauthorised deduction of wages, and of holiday pay, to be well-founded and ordered the respondent to pay compensation to the claimant in the total sum of £23,782.65. At the hearing of the matter, which took place on 23 and 24 May 2011 in Belfast, the claimant appeared and represented herself, but there was no appearance by or on behalf of the respondent.

2. By letter dated 18 August 2011, Messrs McIvor Farrell, Solicitors, on behalf of the respondent wrote to the Office of Tribunals making an application for a review of the decision on two grounds. These were, firstly, that the decision was made in the absence of the respondent and, secondly, that the interests of justice required a review. Further details of the basis upon which the review application was made were referred to in the said letter from the Solicitors.

3. In regard to the technical basis for any application to review the decision of a tribunal, application may be made by a party for a review of a decision on foot of the relevant rules of procedure (“the Rules”) which are contained in the Schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. In the instant case, application was made on foot of Rule 34 of the Rules and this application was duly considered by the Chairman pursuant to Rule 35 of the Rules. The Chairman’s determination was that the review application ought properly to proceed to a hearing and thus the matter now comes before this tribunal.

4. In this review hearing Mr Corkey, on behalf of the respondent, further clarified that the application was proceeding on foot of a single ground only, that being the ground specified by Rule 34 (3)(c) of the Rules, which provides that a decision may be reviewed on the grounds that it was a decision made in the absence of a party. It was therefore made clear at this hearing that the review application was not proceeding on the “interests of justice” ground, notwithstanding that this had been intimated in the said letter from the Solicitors requesting the review.

5. The tribunal heard the oral evidence of Mr Robert (“Bertie”) Shaw, Ms Sarah Houston, Ms Geraldine McGahey, Inspector Noel Rogan (the latter being a serving officer in the Police Service of Northern Ireland) and Mr Andrew Linton. At the conclusion of the hearing, the tribunal had the benefit of oral submissions made by and on behalf of the respective parties. The tribunal also received into evidence certain documents, as agreed by the parties.

THE ISSUE

6. At the hearing of the matter, which took place on 23 and 24 May 2011, whilst the claimant herself appeared, there was no appearance by and on behalf of the respondent. In the decision, at paragraph 2 thereof, the tribunal gave an account of certain material events which transpired on the first day of the listed hearing, 23 May 2011. Therein, the tribunal provided an explanation for the tribunal’s determination which was that the proper and fair course was to proceed with the hearing, albeit in the absence of any appearance by or representation on behalf of the respondent. At this review hearing, Mr Corkey on behalf of the respondent has sought to adduce evidence and to present argument to the effect that the tribunal ought properly, upon review, to set aside the decision and ought to order a
re-hearing of the matter before a differently-constituted tribunal. This submission is grounded upon the fact that the decision of the tribunal was made in the absence of the party mentioned. In the case, it is submitted that Bertie Shaw, whilst he was not the respondent to the matter (it is to be noted that Bertie Shaw had been originally named as a respondent but that he had been dismissed by the tribunal as a party to the proceedings at the outset of the initial hearing), was nonetheless the key witness for the respondent and also the person who bore responsibility for the presentation of the respondent’s case at the initial hearing. Bertie Shaw, so it was submitted, had a good and genuine reason for his non-attendance at the tribunal. The tribunal thus had to determine the matter in the light of the evidence and arguments presented at this review hearing.

7. These are the following material facts pertinent to this review:-

7.1 The matter had been originally listed for hearing on the 10 and 11 March 2011. However, it was postponed at the request of both the (then) respondents, upon written application by Bertie Shaw. The reason for this application by Bertie Shaw was that Bertie Shaw stated that he had to attend what he described in his written request for postponement as being a very important directors’ meeting. The claimant had objected to this application for postponement. However, the application was granted and the matter was then listed for hearing on 23 and 24 May 2011. Notices of Hearing were duly dispatched by the Office of Tribunals to the respective parties dated 21 March 2011. Therefore, the parties had received some two months’ advance notice of listing regarding the May 2011 hearing.

7.2 In the decision, the tribunal recorded certain findings of fact in respect of the respondent and also the entity know as “the Cliff”, the latter being constituted as a limited liability company (but further referred to as “the Cliff” for convenience in this decision). “The Cliff” had completed a grant-aided project to construct a sporting and social facility. The directors of the Cliff project desired to arrange a formal opening of the Cliff Centre. That was arranged to take place on 1 June 2011. As would commonly be the case in such matters, discussions at the time centred upon arranging for someone of note, in this case a sporting personality or personalities, to conduct the grand opening ceremony. The event was due to be attended by a broad
cross-section of members of the local community, political figures, and by representatives of the sporting world. A number of possibilities for a suitable personality to conduct the opening ceremony had been mooted and things appear to have been fairly non-contentious in mid-May 2011, as was evidenced in the minutes of a meeting of the Cliff that was held on 13 May 2011.

7.3 One of the personalities approached at the time was Mickey Harte, the Manager of Tyrone GAA Senior County Team. On the 19 or 20 May, Mickey Harte confirmed his willingness to conduct the opening ceremony. The tribunal examined a series of e-mails, transmitted between various parties, that were sent on 20 May, provided in the documentary evidence. Bertie Shaw’s evidence to the tribunal was that he did not see these e-mails on the date these were transmitted. He indicated that he had left the respondent’s office (which was located in the Cliff premises) at approximately 4.00 pm on Friday, 20 May. Bertie Shaw stated on a number of occasions in the course of his evidence that he did not work at weekends. His contention in his evidence was that none of the content of these e-mails came to his attention until the morning of Monday, 23 May 2011. That latter date was of course the first date arranged for the tribunal hearing, as had been notified to the parties some weeks before. The tribunal will return below to the material detail of the content of these e-mails and to the identity of the parties by and to whom these were sent.

7.4 Bertie Shaw’s evidence was that he attended at the respondent’s office in the Cliff premises a little time prior to 9.00 am on the morning of 23 May 2011. The tribunal assessed the nature and the quality of the evidence given. The tribunal found Bertie Shaw’s evidence in this respect to be somewhat vague as regards the timing of matters as these had transpired on that day. However, taken together with the evidence provided by Sarah Houston to the tribunal (Sara Houston being a youth worker in the Cliff but who also seems to have carried out administrative duties on behalf of the respondent) the tribunal’s best assessment of the totality of the evidence is that Bertie Shaw arrived at the respondent’s office at or about 8.45 am on that day, 23 May. According to his testimony, the first time Bertie Shaw saw the e-mails referred to in the preceding paragraph was when he arrived at the office that morning. Sara Houston stated that Bertie Shaw was printing copies of these e-mails when Sarah Houston arrived for work, which was shortly before 9.00 am. Bertie Shaw’s evidence was that he “opened” these e-mails at around 9.00 am. Having viewed the content, he contended that he made what he described to the tribunal as being a “split second decision” to deal with the situation as he saw it. Sarah Houston’s evidence was that Bertie Shaw uttered words in her presence approximating to, “I am supposed to be at a tribunal today but I will have to sort this out”.

7.5 The tribunal found the testimony of both Bertie Shaw and of Sarah Houston as to the precise events that transpired during the remainder of that day to be quite vague and lacking in any specific detail. Bertie Shaw’s evidence was that he left the office shortly after viewing the contents of these e-mails, providing as he did so instructions to Sarah Houston to get in touch with the Office of Tribunals. Bertie Shaw stated that he maintained some type of contact with Sarah Houston by mobile telephone. Bertie Shaw could not say categorically that he indeed had returned to the office that day. Sarah Houston’s evidence was that she was provided with instructions by Bertie Shaw to contact the Office of Tribunals. She stated that she used Bertie Shaw’s e-mail address to do that. Bertie Shaw stated that he had sent no e-mails personally that day but rather that Sarah Houston had sent any
e-mails on his behalf and also that she had made any telephone calls on his behalf made. Sarah Houston was unable to confirm in her evidence whether Bertie Shaw did or did not return to the office throughout the rest of that day, 23 May.

7.6 Without providing any further or specific detail in that respect, Bertie Shaw maintained that he had quite a number of people to speak to in order to avert what he portrayed as being a crisis. He was however unable to provide to the tribunal (or perhaps chose not to do so) any specific detail in respect of the precise identity of any persons to whom he spoke throughout the course of that day, nor of any meetings which he attended that day, nor of any specific discussions which took place during the course both of that day and also the next day, 24 May. Sarah Houston in her evidence provided an explanation for the communications which were dispatched to the Office of Tribunals on the day in question.

7.7 As far as the sequencing of the matter goes, the position appears to be as follows on 23 May 2011:-

9.20 am. The tribunal clerk in the Office of Tribunals receives a telephone call recorded as being from Sarah Houston and records that Bertie Shaw has had to call an emergency directors’ meeting and won’t be able to attend (the tribunal hearing).

9.25 am. This information is imparted to the tribunal Chairman who requests the tribunal clerk to contact Bertie Shaw and the respondent and to communicate the message that the Chairman requires, in writing, reasons for the non-availability as soon as possible and indicates that there is not sufficient information. This request is then actioned by the clerk contracting Sarah Houston.

9.54 am. An e-mail is sent from “bertieshaw” (the listed sender’s e-mail identity) to the Office of Tribunals which states as follows:-

“Dear Sir

Case Ref: 2311/10 – 2391/10

With reference to the above hearing I shall not be in attendance. This has arouse (sic) due to an emergency Directors meeting being called at the Cliff (Larne), to deliberate matters which took place Friday 20th May. The subject of the meeting is restricted and not to be disclosed outside the Board Room.

Yours sincerely

Bertie Shaw”

10.05 am. The tribunal sits with full panel and explains to the claimant what has transpired. The claimant provides to the tribunal some evidence under oath relating to the discrete issue of the non-availability of Bertie Shaw to attend the hearing. The tribunal directs that the case shall be stood over until 1.30 pm on that afternoon, to reconvene, and rises at 10.20 am.

10.30 am. An e-mail is dispatched by the Office of Tribunals to Bertie Shaw to his notified e-mail address (via the tribunal officer responsible for that function) which reads as follows:-

“Dear Mr Shaw

I refer to your e-mail of this morning and I have been directed by the tribunal to inform you that the hearing of this matter will commence at 1.30 pm today, and will continue in your absence, if you are not in attendance. The Tribunal believes that this will provide to you sufficient time to attend the emergency meeting that you have referred to. Please confirm by return that you will be in attendance by 1.30 pm today as the Tribunal will not be willing to grant any further postponement on the basis of the information provided by you”.

12.22 pm. The following e-mail is received by the Office of Tribunals:-

“Liam

I am unable to attend at 1.30 pm.

Bertie Shaw”

8. In paragraph 2 of the decision the tribunal has set forth its reasons for reaching the determination that the hearing ought properly to proceed at 1.30 pm on 23 May 2011. Throughout the remainder of that day no communication of any nature was received from either Bertie Shaw or on behalf of the respondent. A similar situation is also applicable to the following day, 24 May 2011, that of course being the second day of the listed hearing, as notified to the parties some time in advance. Thus the hearing proceeded in the absence of Bertie Shaw and without the respondent being represented at hearing, both in respect of the proceedings on the afternoon of 23 May and also on 24 May.

9. An inspection of copies of certain e-mails adduced in evidence indicates that Bertie Shaw sent an e-mail on 19 May 2011 at 21.13 hrs to a Stephen Mills and to a “Michael Fairfowl” confirming that Mickey Harte had confirmed he was willing to conduct the opening event. At 9.52 hrs on 20 May, Stephen Mills sent an e-mail to Geraldine McGahey, the latter being the Chief Executive of Larne Borough Council, voicing concerns as to what he stated to be Bertie Shaw’s decision to go with Mickey Harte, “on his own”. At 16.43 hrs on 20 May, Nat Woodside sent an e-mail to a wide circulation list that included both Sarah Houston and Bertie Shaw, expressing some concern at what he saw as an opportunity missed and a lack of cross-community inclusion in the selection of Mickey Harte. At 17.25 hrs, Drew Niblock, a local Borough Councillor, sent an e-mail which reads as follows, “I am reluctant to hold what may turn into a committee meeting “on line” however, I feel I have to agree with Nat in that I believed the directors were to approve the guest speaker/s. Secondly I do believe having guest speakers with hard-line backgrounds either Unionist or Nationalist background is a mistake…this is only my meagre opinion. I would have liked to have seen a guest speaker with no political or religious ties, and not necessarily from a football background!”

10. Further e-mails then followed over the weekend, including an e-mail sent by Inspector Noel Rogan (who was both a serving police officer in the Larne Area and also a board member of the Cliff), expressing in some detail his views. That latter e-mail was sent on 22 May at 13.18 hrs to Sarah Houston. Sarah Houston’s e-mail address then purports to circulate that latter to a circulation list on 22 May at 13.55 hrs. Both Sarah Houston and Bertie Shaw stated in their respective evidence that they did not receive any of these foregoing e-mails until Monday morning, the 23 May. The explanation given for the use of Sarah Houston’s e-mail was provided in evidence by Andrew Linton who was a youth worker. Andrew Linton stated to the tribunal that he had access to these foregoing e-mails and that it was he personally who carried out the task of circulation on the 22 May, which latter date was a Sunday, whilst he was in the premises conducting youth duties.

11. At 11.01 hrs on Monday 23 May 2011, Sarah Houston sent to a broad circulation list an e-mail which reads as follows:-

“Subject- Special Meeting.

Dear All

The Chairman of the Board of Directors has called a special meeting Wednesday 25th May 2011, 9.30 am at the Cliff. Full attendance has been asked for and reply of confirmation.

Regards

Sara”.

It thus appears from this latter e-mail that the work involved in initiating the special meeting had been concluded, with the appropriate message having been sent to any relevant parties by Sarah Houston to the various invitees by 11.00 am approximately on 23 May. It is to be noted that Sarah Houston, in contacting these persons by e-mail, employed her own identity designation in this circulation e-mail (as “Sara Houston, Finance/Administration, The Cliff (Larne)”) and did not purport to send this e-mail as “Bertie Shaw”.

12. As mentioned above, the tribunal received no specific evidence nor any detail as to precisely what activities, meetings, discussions or other business Bertie Shaw attended to after 11.00 am on 23 May and throughout the rest of that particular day. The same applies to the following day, 24 May. The meeting of directors of the Cliff then duly took place on 25 May as arranged. There was a degree of dissension expressed at that meeting. It appears that some of the representatives attending the meeting, specifically the political representatives, were concerned at what they perceived to be the lack of a balanced approach being taken in the selection of Mickey Harte conduct the opening ceremony. Geraldine McGahey indicated in her evidence that some elected members of the board of the Cliff felt that, whilst the board had agreed a balanced approach, a unilateral decision had been taken by Bertie Shaw to engage Mickey Harte to conduct the opening ceremony.

13. When questioned about the possibility, which had been suggested by Bertie Shaw in his evidence, that local feelings were running so strongly on 23 May that there could well have been civil unrest and disruption and indeed the possibility of violence, both Inspector Rogan and also Geraldine McGahey did not in any way support that suggestion. Indeed when questioned about this and the possibility of boycotting and road closures and other such matters, inspector Rogan responded, stating that this was “nonsense”, as he put it, in his opinion. When Geraldine McGahey was asked for her assessment of the e-mail sent by Drew Niblock (as mentioned above) she did not regard this as in any way constituting a political threat, but rather stated that this could be viewed as a request that a balanced approach ought to be taken. Indeed towards the conclusion of her evidence Geraldine McGahey reaffirmed her opinion that she did not believe at the time that this would have led to any civil unrest whatsoever.

THE TRIBUNAL’S DETERMINATION ON REVIEW

14. The tribunal has been quite properly directed by Mr Corkey to focus attention upon the specific issue of whether or not the respondent has effectively established the case that there was a good and genuine reason for non-attendance at the tribunal. Mr Corkey has submitted that the attention of the tribunal ought to be directed to the evidence of Inspector Rogan, of Andrew Linton, of Sarah Houston and of Bertie Shaw, and has submitted that the evidence supports that there was such a good and genuine reason. Mr Shaw, as Chairman of the respondent, it has been submitted, was the sole person who could have taken charge of the defence of the proceedings in this matter by the respondent. It has been suggested that the only non-compliance on the part of the respondent in the entire matter was the failure to produce a representative and a witness at the hearing. It is submitted that the issue that emerged over the weekend commencing Friday, 20 May (in respect of which matter neither Bertie Shaw nor Sarah Houston have in their evidence to the tribunal admitted any knowledge prior to 23 May) developed into a significant crisis on that latter date and that Bertie Shaw thus had to devote to this matter his full and undivided attention. He claims up to that point to have been in a proper state of preparation and to have fully intended to attend the tribunal hearing on the 23 May. It is contended by Bertie Shaw that the entire matter had the potential to develop into potential street violence and that Inspector Rogan was willing to stand with and to support Bertie Shaw in respect of that suggestion. It is contended that the evidence of Andrew Linton and of Sarah Houston also supported Bertie Shaw in his interpretation of matters. It is further contended that the evidence of Geraldine McGahey supports the view that action had to be taken immediately. Whilst it is correctly submitted on behalf of the respondent that the tribunal has a wide discretion in these matters, it is also argued that the tribunal is fully required to have regard to the overriding objective (set forth in the Tribunal’s Rules of Procedure) and to Article 6 of ECHR. The contention put forward by Mr Corkey, robustly it has to be said, is that the respondent in this case has been denied a fair hearing by the fact that the case proceeded in the absence of the respondent. A parallel has been drawn in Mr Corkey’s submissions with the general civil jurisdiction of the Courts and the practice which is stated to be that summary judgements are relatively easily overturned, irrespective of the reasons (meritorious or otherwise) for any defence not being lodged within any statutory time period stipulated.

15. For her part, the claimant has sought to argue that the matter was indeed originally portrayed to the tribunal, in the initial communication received on 23 May, as necessitating an urgent meeting that had to be called on that day, 23 May. However, so the claimant argues, the strength of that point has now been undermined for the reason that it has now been revealed that there was no such urgent meeting whatsoever held on that date. Indeed, the meeting referred to was not scheduled to take place until 25 May, some two days later. The claimant thus submits that no proper or persuasive reason has been afforded on behalf of the respondent by Bertie Shaw for his non-attendance. The claimant’s submission is that the tribunal had taken due and proper care to deal with the matter on account of the fact that the substantive hearing did not proceed on the morning of 23 May, but rather that the matter was adjourned until 1.30 pm in the afternoon of that day, thereby affording to Bertie Shaw a chance to attend on behalf of the respondent, or otherwise for the respondent to be represented. Despite this accommodation, Bertie Shaw had not attended, nor had he provided any good and proper reason for his non-attendance in the afternoon of that day or indeed the following day. The claimant’s submission has continued that, in taking full and proper account of the balance of prejudice in granting or in refusing the review application, the tribunal had to take full and proper account of the fact that the entire legal process had been extremely stressful and very difficult for the claimant. It had “taken over” the claimant’s life for some 16 months, she contended. The claimant made a strenuous submission to the tribunal that she was genuinely uncertain as to whether she could indeed summon the personal resources and the strength to repeat the process, if the decision were to be set aside and a re-hearing were to be ordered. The claimant thus submitted that the balance of hardship would be heavily weighted against her if the tribunal were to decide to order a re-hearing. The matter, the claimant suggested, would be extremely difficult and most stressful for her just at a time when she had, with some justification she had felt, believed that this was a very difficult episode in her life that had been fully and entirely put behind her.

16. In submissions, Mr Corkey referred the tribunal to the Northern Ireland Industrial Tribunal case of Matthew Wood -v- Anthony Barbour & Others (IT 2590/06 and 2508/06). This was a decision promulgated in 2008. Extracts from that decision cited included a reference to a passage from the case of Yunez Teinaz –v- London Borough, Wandsworth [2002] EWCA Civ1040. In Wood -v- Barbour the Tribunal set aside, upon review, the original decision. That original decision was a decision not to grant an adjournment and to proceed with a hearing in the context of a factual scenario where a party had been absent and out of the country upon vacation. In the passage from Teinaz mentioned in the Wood -v- Barbour decision, Article 6 of ECHR is referred to and there is a reference to the tribunal or the court being properly entitled to be satisfied that the inability of the litigant to be present was genuine; the onus was on the applicant for any adjournment to prove the need for such an adjournment. The case of Wood -v- Barbour was determined on the basis that the first named respondent had not been afforded a proper opportunity to be heard in his application for an adjournment and thus the decision was revoked by the Tribunal on review.

17. Applying such principles as may be gleaned from these cases (and from the rather sparse commentary that is contained in Harvey upon the matter which was also briefly referred to by Mr Corkey in his submissions), the tribunal takes note of the history of the matter and in particular the timeline of material events. The first communication received by or on behalf of Bertie Shaw on 23 May was to the effect that Bertie Shaw was required to call an emergency meeting of directors and would not be able to attend. In that first communication, the impression was certainly not communicated to the tribunal that the directors’ meeting would indeed not be taking place that day and indeed until some two days later. On that morning, the tribunal made it quite clear in directions that were subsequently communicated, that the tribunal would require full details of the reasons why no representation of the respondent was possible. Then there was a response by means of an e-mail sent at 9.54 am to the Office of Tribunals. That e-mail purported, upon plain reading, to have been sent by Bertie Shaw. However, as far as Sarah Houston’s evidence goes, she claims that it was sent to the Office of Tribunals by her and not by Bertie Shaw. Irrespective of the actual identity of the sender, it is very clear from the content of that e-mail that the tribunal is not intended to be provided with any detail as to the precise nature of the reason for the directors’ meeting. Further, it is certainly not made clear that the meeting was not to take place on that day. In response to this rather unsatisfactory state of affairs, the tribunal felt that the proper course was to allow any emergency meeting (which on a straightforward reading of the e-mail the tribunal believed had probably proceeded on that morning) to take place. By this means the tribunal felt that the provision of adequate time would be afforded by arranging for the hearing to be reconvened at 1.30 pm on that afternoon. When further information was requested and the position regarding the direction that the tribunal was to be re-convened that afternoon was specified on behalf of the tribunal, a further e-mail was received. Once again, that e-mail purported, upon plain reading, to have been sent by Bertie Shaw. However as far as Sarah Houston’s evidence goes, she once again states that it was sent by her and not by Bertie Shaw. That latter e-mail, which was sent at 12.22pm on 23 May, merely states that Bertie Shaw is unable to attend at 1.30 pm. No reason is provided to the tribunal and no further information whatsoever is imparted which might assist the tribunal in any manner.

18. Although the case of Teinaz related to absence from tribunal proceedings connected with medical issues (and thus Teinaz is to an extent factually distinguishable from the instant case, Teinaz also makes the point that notwithstanding any litigant’s right to a fair trial under Article 6 of ECHR, the tribunal or court is still entitled to be satisfied that the inability of any litigant to be present at hearing is quite genuine. The point is also made that the onus is very clearly upon any applicant who seeks such an adjournment to prove the need for the adjournment.

19. There are two issues arising from the foregoing matters and these are pertinent to the issues in this case. Firstly, there was nothing contained in any information or communication received by the Office of Tribunals either from or on behalf of Bertie Shaw, or on behalf of the respondent, expressly requesting any adjournment. The communications merely stated that Bertie Shaw would not be able to attend. However, if one were nonetheless to imply into these communications an implied request for an adjournment, then quite clearly the tribunal is properly entitled to enquire into the material circumstances. In doing so, the tribunal is properly entitled to receive a plausible and a convincing explanation in order to sustain any adjournment application. The tribunal’s determination that was made at the time, in deciding to proceed with the matter as it did, was arrived at for the reason that there was afforded to the tribunal no proper and plausible explanation. Indeed, as the tribunal reads matters, there was very evidently and very clearly a determination made by or on behalf of the respondent and by Mr Shaw to provide none of the proper and adequate detail and explanation that had been requested in order to assist the tribunal.

20. The tribunal now sees the case being made on behalf of the respondent (very much after the event it has to be said) that there were substantial concerns harboured by Bertie Shaw which prevented him from attending the tribunal. A robust submission has been made in that regard on behalf of the respondent by Mr Corkey. Considering the totality of matters and the respective contentions of the parties, the tribunal is not persuaded by the respondent’s submission in this respect. The tribunal’s reasoning is that, firstly, the tribunal has concluded that the evidence of both Bertie Shaw and of Sarah Houston is in some material respects vague, unsatisfactory and indeed lacking in cogency and reliability. To give one example, Bertie Shaw manifestly failed to take the opportunity readily afforded to him throughout this hearing, to provide specific, real and convincing information and detail to the tribunal. He failed properly to give a precise account of the exact nature and of the extent of the stated pressing commitments which he contends had prevented him from attending the tribunal, firstly on the morning of 23 May, then more particularly from at 1.30 pm onwards on that day, and thirdly indeed throughout the following day, 24 May.

21. It is clearly the case that the meeting of the Board was arranged by not much later than mid-morning on 23 May for 25 May. However, the tribunal has been left entirely in the dark concerning any commitments of Bertie Shaw personally beyond the specific point in time on that morning when the 25 May meeting had been arranged. In this regard, taking the evidence of the e-mail that Sara Houston states she sent at 11.01 am, the work of arranging the 25 May meeting had been concluded by that time in the morning. Bertie Shaw was pressed for further information, but nothing of any specific detail was afforded. Certainly if any other tasks of an urgent nature had required to be performed, the tribunal was provided with nothing either by Bertie Shaw nor indeed by Sarah Houston.

22. The tribunal, it must be said, finds the provenance of the e-mails that were stated in her evidence to have been dispatched by Sarah Houston on behalf of Bertie Shaw to be problematical. The tribunal notes that, if her evidence is to be accepted, Sarah Houston employed an entirely different e-mail format when she invited the various parties that morning to the 25 May meeting. In doing so, she personally identified herself in these communications. Notwithstanding that, she had purported to send e-mails to the Office of Tribunal under Bertie Shaw’s name and using his electronic identity, without identifying herself as being the author of these e-mails. These were expressed in the first person and any reader would presume that these had been sent by Bertie Shaw himself. At specific times in the receipt of their evidence, the tribunal has noted from both Bertie Shaw and from Sarah Houston unsettling degrees of equivocation and vagueness. Points of anticipated detail that one would normally expect to be readily provided were absent. For example, matters would have been more persuasive if evidence had been specific and detailed concerning whether or not Bertie Shaw (who states that he left the office at about 9.00 am on 23 May) had indeed returned to the office at all that day. Notwithstanding this expectation of clear evidence, both Bertie Shaw and also Sarah Houston were vague upon this point and were unable to state conclusively if Bertie Shaw did or did not return that day. This evidence was assessed by the tribunal as being guarded to the point of the suggestion of a lack of candour. The tribunal is not persuaded that either of the two was giving an entirely full and proper account of matters to the tribunal.

23. Whilst there may have been a degree of dissention at the meeting which then followed on 25 May, there was certainly no evidence as far as either Inspector Rogan or Geraldine McGahey were concerned that there was any imminent prospect of widespread civil unrest or disruption. However that prospect of widespread unrest and disruption was the impression that Bertie Shaw had attempted to convey to the tribunal as supporting his justification for not attending the tribunal on either of the two days. There is also nothing in the content of any of the e-mails produced in evidence and inspected by the tribunal which would suggest problems or difficulties existing at the time to a degree such as to cause Bertie Shaw reasonably and properly to take what Bertie Shaw depicted to the tribunal as being a “split second decision” not to attend the tribunal, notwithstanding that that he had been fully aware, so he concedes, that the matter had been listed for some two months in advance of the dates of hearing. The tribunal also noted that, whilst Bertie Shaw stated that he was certainly fully intending to attend the tribunal hearing and to conduct the defence of the proceedings, nonetheless he was unable to provide to the tribunal any specific detail whatsoever about any preparatory steps which he had taken to place the matter in a state of readiness for the defence of the claims in the course of any forthcoming hearing. He also had, it must be noted, expressly declared his scepticism concerning the prospects of success of the claimant in the matter. Further, he had clearly been somewhat surprised, after the event and upon receipt of the tribunal's decision, at the level of compensation that was awarded by the tribunal.

24. Looking at all of this, the tribunal’s conclusion is that the most probable explanation for things is that Bertie Shaw viewed the proceedings with a measure of scepticism and disregard. He decided that the matter did not merit his personal attendance on either of the two days of listing. He did not seek to make arrangements for anyone else to attend nor indeed for any legal or other representation. In regard to that latter, Bertie Shaw in this review hearing has cited a lack of funding for not seeking legal representation at the time. Whilst the tribunal is unaware of the situation regarding the funding of legal representation at this review hearing, nonetheless it has noted that legal representation has been made possible for these review proceedings and there has been no endeavour to explain that distinction to the tribunal as regards availability of potential funding.

25. In these matters, the focus that the tribunal must properly be directed to the balance of prejudice or of advantage to be suffered or to be gained by either party in the granting or in the refusal of the application for review. If the tribunal were to fail to grant the review that has been sought and were not to order the decision to be revoked, no doubt that would constitute a substantially detrimental outcome as far as the respondent is concerned. In contrast, that is of course the beneficial outcome sought by the claimant. If the review were to be granted and the decision thus were to be revoked, this would be a most detrimental outcome to the claimant. The tribunal has in this respect particularly noted the claimant's powerful submission that she has made a very considerable personal investment in many respects in taking proceedings thus far and at a considerable and substantial personal cost to herself, over a protracted period of time. The tribunal was persuaded that the claimant’s fear was genuine when she expressed doubt whether she could summon the personal and other resources to repeat the process.

26. If the tribunal were to refuse this review application, that would be an outcome in regard to which responsibility must rest with the decision making of Bertie Shaw on 23 May 2011 and indeed on the following day. Balancing the clear and substantial level of detriment that would be sustained by the claimant if the review were to succeed, with the detriment to be sustained by the respondent in the decision being allowed to stand, the tribunal believes that the claimant is properly entitled to expect and to receive finality in litigation. The tribunal in this regard determines that the respondent has not made out a sufficiently strong and persuasive case to succeed, notwithstanding that the decision of the tribunal was made in the absence of a party. Bertie Shaw has been stated to be both a key witness for the respondent and also the person who bore responsibility for the presentation of the respondent’s case at the initial hearing. The tribunal is not persuaded that Bertie Shaw had a sufficiently good and genuine reason, such as to enable the review to succeed, which entirely prevented his attendance at the tribunal on either of the two days listed for the hearing. Therefore the tribunal is of the unanimous determination that refusing the review application in this matter is the proper outcome.

27. Accordingly the review application is refused and the tribunal’s decision is affirmed in its entirety.

28. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

Chairman:

Date and place of hearing: 20 September, 25 October & 21 December 2011, Belfast.

Date decision recorded in register and issued to parties: