THE INDUSTRIAL TRIBUNALS
CASE REF: 3093/17
CLAIMANT: Anthony Millar
RESPONDENT: Foyle Food Group Limited
DECISION ON REVIEW
The unanimous decision of the tribunal is that the application for the review of the decision of the tribunal which had issued on 6 March 2018 is out of time and that there are no grounds on which it would be just and equitable to extend that time limit. The application for review of that decision is therefore dismissed for want of jurisdiction.
The respondent's application for the costs of today's review hearing is also dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Ms F Cummins
Mr A Barron
The claimant did not appear and was not represented at the Review Hearing. Written submissions had been provided on his behalf.
The respondent was represented by Mr Barry Mulqueen, Barrister-at-Law, instructed by O'Hare's Solicitors.
1. The claimant had been employed by the respondent from 27 December 2013 to 3 March 2017 when he was dismissed, allegedly on the ground of redundancy.
2. The claimant lodged claims including a claim of unfair dismissal. That latter claim was upheld in a decision of this tribunal.
3. That decision of this tribunal issued on 6 March 2018.
4. That decision awarded compensation in respect of that unfair dismissal of £8,392.00 to the claimant.
5. That decision, on the first page and under the heading "Decision", specifically drew the attention of the parties to the recoupment notice which was attached to that decision.
6. That recoupment notice made it plain that payment of the award of compensation in this case was going to be withheld until the Department for Communities had considered the recoupment of certain social security benefits, including jobseekers allowance and until the Department had had the opportunity to serve a notice on the respondent, requiring the repayment of those social security benefits before the balance, if any, of the compensation award could be paid to the claimant.
7. On receipt of the decision, the claimant could have been in no doubt that certain social security benefits, including jobseekers allowance, which had been paid to him after his dismissal, would be deducted from the sum of £8,392.00. He had been employed in a managerial position by the respondent and in the view of the tribunal had been perfectly capable of understanding both the decision and the recoupment notice. In any event, even if any further explanation had been required by the claimant, he had been advised at the relevant times by an experienced solicitor and by an experienced counsel. The tribunal is satisfied that there is no reason why the claimant would not have understood the position in relation to the recoupment of social security benefits immediately upon receipt of the tribunal decision awarding that compensation.
8. Rule 35(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 provides that an application to have a decision of the tribunal 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. In the present case, any application to review the decision should have been received by the Office of the Tribunals within 14 days from 6 March 2018. The claimant, being advised by an experienced solicitor and by an experienced counsel, could have been in no doubt about the time limit applicable to an application for review. In any event, detailed Explanatory Notes had been attached to the decision of the tribunal. Those Explanatory Notes set out in plain terms the grounds on which an application for review could be made and stated in equally plain terms;
"Any application for review should be made by letter to the Secretary of the Industrial Tribunals and the Fair Employment Tribunal at the address shown above within a period of 14 days of the date the decision was sent to the parties, which date is shown on the last page of the decision as the date of issue to the parties."
9. On 23 March 2018 the claimant's solicitor wrote to the tribunal applying for a review of the decision under Rule 34(3)(d) and (e) of Schedule 1 to the 2005 Rules. The claimant's solicitor argued that the award of compensation was inadequate.
10. The claimant's solicitor stated;
"(1) the respondent did not make any submissions to the tribunal that there were managerial positions on a salary of £33,000 per annum available within the Derry area and suitable for the claimant;
(2) the respondent in this matter did not submit any evidence to support the proposition that there were equivalent jobs to that which the claimant enjoyed with the respondent available in the Derry area at a salary of £33,000 per annum within six months of dismissal. In view of Mr Kelly's finding, he limited the claimant's loss to £8,392.00. The claimant's actual loss was vastly in excess of this;
(3) the claimant was employed on a salary of £33,000 per year in a managerial role. It was well acknowledged that Derry is so particularly poor economic black spot for unemployment. There is a dearth of managerial roles in the manufacturing industry paying £33,000 per annum in the Derry area;
(4) the claimant does not drive, therefore the geographical area within which he could reasonably have been expected to obtain employment was limited;
(5) we have carried out a search of NI Job Finder. As of today's date there are no manufacturing roles in Derry in excess of £30,000 per annum. Although this search is as of today rather than at the relevant time, it is representative of the market for such roles in the Derry area;
(6) due to the fact that no managerial jobs on an equivalent salary were available in Derry area, the claimant went for a lower job on less salary with Seagate as it was the best he could do in the circumstances."
The claimant's solicitor went on to state;
"The claimant believes it is necessary for the decision to be reviewed and varied in the interests of justice."
11. This was a two page letter and clearly a great deal of thought had gone into its preparation. Nevertheless no grounds were provided for any extension of time to enable the application for review to be considered. The letter simply stated;
"We note that the period for submitting this application was 14 days from the date of the decision, however we request that the tribunal exercise its discretion and allow the application to proceed. The claimant submits that it would be in the interest of justice for the tribunal to do so."
12. If there had been any genuine reason why the application for a review had not been lodged within time, that reason would have been put forward at this stage. It was not.
13. The tribunal wrote back to the claimant's solicitor on 29 March 2018. That letter stated that the application for review had been considered by the Vice President and that the Vice President had directed;
"The application for review was received on 26 March 2018 by email. The application is therefore clearly out of time. The time limit in Rule 35(1) is 14 days. The application does note that it is out of time but the claimant's solicitor has not explained the lateness of the application and has not said why it would be just and equitable to extend the time limit. There is a clear public interest in the finality of the litigation; hence the relatively short time limit. It is not sufficient to refer to what the claimant regards as the merits of the application. The lateness of the application should be explained. The Explanatory Notes accompanying the decision would have made the time limit clear. The grounds on which it would be just and equitable to set aside the statutory time limit should also be explained by the claimant's solicitors. The claimant's solicitor should explain those matters within 10 days of the date my comments are sent to him before a Pre-Hearing Review can be considered to deal with the time limitation issues."
14. The application for review had been copied by the claimant's solicitor to the respondent's solicitor. The respondent's solicitor replied to the claimant's solicitor and to the tribunal on 26 March 2018. That reply stated that the application had been out of time and that no grounds had been furnished on which the tribunal could extend time. It also asserted that no new evidence had been presented which had only become available since the hearing of the action or which required a review in the interests of justice. It referred to details of the decision and argued that there was no necessity for a Review Hearing on jurisdictional grounds or on the basis of the representations made by the claimant. It asserted that the nature of the application was unreasonable and frivolous and that it was an attempt on the part of the claimant to introduce evidence which was or should have been within his knowledge at the time of the hearing before the tribunal. The respondent put the claimant on notice that if the matter proceeded they would be seeking costs.
15. Despite being directed in the tribunal's letter of 29 March 2018 to provide grounds for any extension of time within 10 days from 29 March 2018, the claimant's solicitor did not respond until 13 April 2018. That further delay does not indicate any degree of urgency on the part of the claimant and given the comments contained within the tribunal's letter of 29 March 2018 is inexplicable.
16. In the letter from the claimant's solicitor dated 13 April 2018, the argument was made that the claimant had initially accepted the tribunal's decision but at that point the claimant had not appreciated that he may not be entitled to the whole monetary award. The letter stated that the claimant did not fully grasp the implications of the recoupment notice in relation to the monetary award. The tribunal simply does not accept that explanation. The claimant had been perfectly capable of understanding the implications of the decision and the recoupment notice and the tribunal concludes that he had understood both.
17. The letter from the claimant's solicitor went on to refer to the recoupment of £1,096.51. It stated that the repayment of benefit notice from the Social Security Agency was dated 14 March 2018 but that they had not been notified by the respondent's representative until the 20 March 2018. The letter sought to lay the blame of any delay upon the respondent. The tribunal does not accept that that is appropriate. The notification from the Social Security Agency was sent by the Social Security Agency direct to the respondent, Foyle Food Group Limited on 14 March 2018. That would then have to be forwarded on to the respondent's solicitor who promptly notified the claimant's solicitor on 20 March 2018. In circumstances where the claimant had been fully aware of the potential of recoupment and in circumstances where the claimant would had been fully aware that he had at the relevant times been in receipt of social security benefits, it cannot of been in any sense a surprise to him that recoupment of just over £1,000.00 had been sought by the Department for Communities. The tribunal does not accept that the recoupment of this sum was in any sense the reason for a delay in the application for a review or the reason he had sought a review.
18. The claimant's solicitor argued that it had not been reasonably practicable for them to submit an application earlier, as they had required time to arrange a consultation with a claimant in order to explain what the recoupment notification meant. The tribunal does not accept that that is the case. The claimant would have known from receipt of the initial tribunal decision what a recoupment notice meant and of the likelihood of recoupment occurring in this case. If there had been any need for a further consultation that can and should have been arranged much earlier.
19. The claimant's solicitor wrote to the tribunal on 18 July 2018 to indicate that his client was not in a position to pay for representation at the review hearing and he asked for the written representations to be considered on the claimant's behalf. The claimant's solicitor was notified that that would be done.
20. The claimant had failed to provide adequate evidence of financial loss at the original hearing of this matter. The claimant had been served with a Notice for Additional Information by the respondent on 7 July 2017 requiring inter alia;
"Give full exact and precise details of all employment obtained by the claimant since the date of his dismissal."
"Give full exact and precise details of each and every effort made by the claimant to seek alternative employment since the date of his dismissal."
21. The claimant also received a Notice for Discovery from the respondent on 7 July 2017 requiring inter alia;
"All documentation relating to any employment obtained by the claimant since his dismissal."
23. The claimant had also been advised at the relevant times by an experienced solicitor and experienced counsel. He would have been well aware that the onus had been on him to provide details of evidence relating to his subsequent employment in Seagate.
24. Despite that, the claimant totally failed to produce satisfactory evidence of what he earned in Seagate. He had produced only two payslips from that employer; one showed net pay of £385.26 and the other showed net pay of £1,514.66. The payslips were to a significant extent extremely faded and almost illegible. The claimant had alleged that he had been paid only net wages of £322.00 weekly in Seagate. No satisfactory evidence had been produced to establish that weekly net figure. The tribunal recorded;
"The tribunal was sorely tempted to leave the matter at that point and to determine no future loss whatever. It is not for the tribunal, in a mixture of guess work and charitable inference, to do the work of the claimant for him, and to work out his net earnings at Seagate."
25. Despite that, the tribunal made considerable efforts to work out and to try and establish what the claimant's net earnings might have been at Seagate.
26. The claimant also made it plain that he had not sought higher paid employment or employment on a wage equivalent to that he had been paid by the respondent at any stage after taking employment at Seagate at what he alleged had been a lower wage.
27. The tribunal is content that the decision in relation to remedy was correct and indeed one might argue generous to the claimant.
28. It is clear that the application for a Review of the Decision of the Tribunal issued on 6 March 2018 was made outside the statutory time limit fixed in Rule 35(1). The tribunal can see no grounds upon which it will be just and equitable to extend that time limit. The tribunal does not accept that the implications of the recoupment notice came as any sort of surprise to the claimant once the actual figure had been determined by the Department for Communities and does not accept that the implications of the recoupment notice were in any sense the reason for the delay in applying for a review of this decision.
29. The application for review is therefore dismissed as out of time.
30. Even if time had been extended to allow the tribunal to have jurisdiction to consider the application for review, the tribunal would have dismissed any such application for review. It had been for the claimant to produce evidence of his loss to the tribunal and he had failed to do so. It was inappropriate for the claimant to seek to add further evidence long after the conclusion of the hearing in this matter when he had had ample opportunity to produce that evidence in response to the Notices from the respondent or as his evidence to the tribunal.
31. The respondent sought costs in respect of the hearing. The respondent sought costs of £1,750.00 plus VAT.
32. Costs in this jurisdiction remain a rarity. The tribunal is not satisfied after some anxious consideration that the tests for awarding costs have been met in this case. The time limit for the lodgement of the application was not exceeded by an excessive amount of time and on balance, it cannot be argued that it was unreasonable or misconceived for the claimant to have sought for to achieve an extension of time in this respect. The application for costs is therefore refused.
Date and place of hearing: 24 July 2018, Belfast.
Date decision recorded in register and issued to parties: