THE FAIR EMPLOYMENT TRIBUNAL
CASE REF: 00545/97FET
02869/97SD
00349/99FET
03767/99SD
00385/00FET
02259/00
APPLICANT: Denis Arnold
RESPONDENT: Department of Finance & Personnel
DECISION ON AN APPLICATION FOR REVIEW
The Tribunal unanimously dismisses the applicant's application for review for the reasons appearing below.
Appearances:
The applicant appeared on his own behalf.
The respondent was represented by Mr Shaw QC, instructed by the Departmental Solicitor's Office.
- On 19 November 2001 the Tribunal, by consent between the parties, made an Order in the terms of an agreed settlement. The Order and Terms of Settlement are annexed hereto. At that hearing and at all subsequent hearings the applicant has not had legal representation(s) and has appeared on his own behalf.
- By letter dated 27 November 2001 the applicant applied for a review. He alleged that on the morning of 19 November he was not represented and had not expected to be approached regarding settlement of the case. He further alleged that the settlement was the result of his having to make 'an ill advised and pressured decision within about 20 minutes'. He further submitted that he had no confidence that what he had agreed to would be fruitful. He further submitted that 'the settlement was arrived at under pressure and it is not in the interests of justice'.
- The applicant again wrote to the Tribunal on 30 November wherein he stated that since his previous letter of 27 November he had had the opportunity to read an 'additional bundle of documents furnished by the respondent on the morning of the hearing' which raised 'issues requiring ventilation at Tribunal'.
- In view of the fact that the applicant was alleging that he had been 'pressurised' into reaching a settlement the Tribunal decided to hear the review application. On 17 January 2002, the respondent wrote to the Tribunal refuting the applicant's allegations and contesting the Tribunals' jurisdiction to hold a review in the circumstances.
- An agreed date for hearing was eventually found and the review matter was listed for 30 May 2002. At that hearing on 30 May the respondent opened by contesting the Tribunal's jurisdiction. It became apparent that the applicant had not received the respondent's letter of 17 January and was unaware that the respondent intended to make submissions on this basis at the hearing. The Tribunal advised the applicant to take time to read the letter of 17 January and rose to allow him to do so. The applicant then applied for an adjournment to allow him to take legal advice and the respondent did not contest this application. The Tribunal explained what was meant by 'jurisdiction' to the applicant and explained the ramifications of lack of jurisdiction for his review application and allowed the adjournment. The adjourned date was set for 6 September 2002 which was the next suitable date for the parties and the Tribunal. The Tribunal noted, during discussions with the parties at the hearing on 30 May 2002 that the applicant indicated that with regard to his review application he was not challenging Mr Shaw's integrity.
- The application for review resumed on 6 September. Mr Shaw opened by outlining his arguments on jurisdiction. The Tribunal considered that the applicant would require time to consider these arguments and decided to avoid a further adjournment by hearing what the parties had to say about the application for review itself. The Tribunal proceeded to hear the parties on the issue of the application for review alone and announced that unless and until the application for review was granted it would not consider the respondent's arguments on jurisdiction. The respondent was agreeable to this course of action.
- The Tribunal now turns to the crux of this application for review, ie the events leading up to and surrounding the settlement of 19 November 2001. The Tribunal was aware of the following facts. The applicant's case was scheduled to commence at 10 am and it was the Tribunal's main case listed for 10 consecutive days. Shortly after 10 am the Tribunal was informed that the parties were discussing matters pertinent to the case. After some time the Tribunal asked the parties to appear before it and to inform it as to when they would be ready to start. The Tribunal needed to know what was happening as there was a 5-day reserve case waiting. The parties appeared before the Tribunal and Mr Shaw stated that the parties were discussing the case. At this juncture the Tribunal enquired whether the applicant was agreeable to proceeding with discussion in view of the fact that he was not legally represented and there was no representative from the Labour Relations Agency present. The applicant gave every appearance of being content for discussions to continue without assistance and on the recollection of one panel member he nodded his acquiescence in a positive and cheerful manner. It was not disputed that the applicant was happy to continue unaided with his discussions with Mr Shaw. At this juncture, Mr Shaw informed the Tribunal that more time was needed for their discussions and that there were no objections to the reserve case commencing. The Tribunal then proceeded to hear the reserve case. At about midday the Tribunal was asked to take a settlement in the applicant's case. The parties returned to the Tribunal room and Mr Shaw handed in the signed Terms of Settlement in typed form and informed the Tribunal that the parties wished it to be made an Order of the Tribunal. At this juncture the Tribunal asked the applicant whether he had read and understood the signed settlement and he said he had. The applicant also indicated to the Tribunal that he wished the Tribunal to make an Order reflecting the agreed terms. The parties then left the Tribunal and the annexed Decision incorporating the Terms of Settlement was subsequently drawn up.
- At the hearing of the application for review on 6 September 2002 the Tribunal learned that the parties had been in discussion since 9.30 am on the morning of 19 November. It was not disputed that Mr Shaw approached the applicant to enquire whether he had received the discoverable documents in the case. The respondents had prepared about six red files containing all discoverable documents for the hearing. The Tribunal is satisfied that a red file was then made available to the applicant. The applicant told the Tribunal that he never consulted this red file at all on the morning of 19 November, although he had ample opportunity to do so. Instead the applicant agreed to enter into discussion with Mr Shaw about the case itself. As a result of these discussions unsigned heads of agreement were drawn up in manuscript form. It was decided that the manuscript should be typed up in proper form. This necessitated Mr Shaw's solicitor in leaving Long Bridge House for some forty-five minutes. During this period the applicant did not avail himself of the opportunity of reading the red file and satisfying himself as to the documentation before finally signing the typed agreement. When the typed up agreement arrived it was duly signed by the applicant without demur.
- The Tribunal was concerned to established whether, as alleged, the applicant had been 'pressurised' into signing the settlement. To this end the Tribunal noted that the applicant was not impugning the manner in which Mr Shaw acted towards him and at no time did he impugn Mr Shaw's integrity in the matter. The Tribunal specifically asked the applicant whether Mr Shaw had acted in an oppressive manner and the applicant replied, "No he didn't because that is something that would have destroyed the agreement" and he went on to elaborate that if it was clear that someone was trying to push him into an agreement then he would have walked away. From this the Tribunal is satisfied that no pressure was brought to bear upon the applicant on the morning of 19 November by the respondent in an effort to get him to sign the settlement. Indeed the applicant stated to the Tribunal that he was not alleged that Mr Shaw did anything wrong.
- The Tribunal then enquired whether at the time of signing the agreement the applicant agreed to its contents and he told the Tribunal that had he not agreed to them he would not have signed the settlement. The applicant further accepted that he indicated to the Tribunal on the morning of 19 November that he was happy to proceed without legal advice. Further, the applicant accepted that when he was asking for the settlement to be made an Order of the Tribunal that he fully appreciated that in doing so he was withdrawing his complaints and asking the Tribunal to call a halt to his case on the basis of the agreement. Finally, the applicant conceded that the Tribunal, in making the Order, did so in compliance with his expressed wishes at that time and that he had not sought it to do anything more for him.
- The Tribunal made the following findings of fact relating to the applicant's allegation that the Terms of Settlement he signed which resulted in his withdrawal of his complaints had been signed 'within about 20 minutes' and had been 'arrived at under pressure'. The Tribunal unanimously rejects that the allegation for the following reasons. First, the Tribunal is satisfied from what the applicant told it that Mr Shaw behaved in a proper, reasonable, fair and professional manner towards him. Second, the Tribunal is satisfied that the applicant had a fair and reasonable opportunity to consider his options on the morning. Third, the Tribunal is satisfied that no time limit was put on this opportunity. Fourthly, the Tribunal is satisfied that between agreeing to the terms and actually signing them the applicant had further time in which to consider them. Fifthly, the Tribunal is satisfied that the applicant had been content to sign those terms at the time of signing. Sixthly, the Tribunal is satisfied that the applicant understood the terms of the settlement because that is what he told the Tribunal at all stages of this case and especially so on the morning of 19 November. Seventhly, the Tribunal is satisfied that the applicant was happy to proceed without legal assistance on the morning of 19th November because that is what he unreservedly indicated to the Tribunal.
- Apart from the allegation of pressure the applicant by letter dated 30 November 2001 referred to the contents of an 'additional bundle of documents'. He stated in that letter that since his first letter of 27 November 2001 (8 days after the hearing on 19 November) he had had the opportunity to read "an additional bundle of documents furnished by the respondent on the morning of the hearing (19/11)". At the hearing on 6 September the applicant said that it was not an additional bundle but the red file of discovered documents made available to him by Mr Shaw on the morning of 19 November but which he had not taken the opportunity to read. The applicant told the Tribunal that he had not read the documents because Mr Shaw had told him that the file contained nothing new. When asked why he referred to the bundle as 'an additional bundle' the applicant stated that he was referring to a bundle of documents he had received at Stormont. When questioned as to why it had taken him over 8 days to read the documents he said that he had received them at Stormont in his post and he had been too busy with other work to get around to reading them. The Tribunal found the applicant's statements confusing and disingenuous regarding the contents of his letter of 30 November. On the one hand the applicant clearly stated in his letter that the additional documents related to those documents "unfurnished by the respondent on the morning of the hearing (19/11)", ie the 'red file'. On the other hand at the hearing he explained that by using the term 'additional' he was referring to another different blue file he had received by post at Stormont. The Tribunal is satisfied that it is likely that the applicant, upon realising that he had failed to avail himself of the opportunity to read the red file on the morning of 19 November, attempted to confuse matters by referring to another file forgetting that his letter specifically and only referred to documents furnished by the respondent "on the morning of the hearing (19/11)". In the circumstances the Tribunal is satisfied that the documents referred to in the letter of 30 November were likely to have been in the applicant's possession on the morning of 19 November before he signed the Terms of Settlement and from the evidence the Tribunal is satisfied that the applicant had had ample opportunity to read those documents before signing the settlement. Further, the Tribunal accepts Mr Shaw's statement that the red file made available to the applicant on the morning contained nothing new in the way of discoverable documents because up to and at the hearing on 6 September the applicant had not demonstrated anything to the contrary.
- The applicant grounded his application for review on two specific grounds, namely:-
Rule 10(1)(e) of the Fair Employment Tribunal (Rules of Procedure) Regulations (NI) 1989 ('the Rules') which provides that:-
'Article 10-(1) A Tribunal shall have power to review and to revoke or vary by certificate under the Chairman's hand any decision on the ground that:-
(e) the interests of justice require it'
and
on Article 100-(1)(b) of the Fair Employment and Treatment (NI) Order 1998 ('the Order') which provides that:-
on Article 100-(1) Except as provided by Paragraph (2), any provision in an agreement (…..) shall be void in so far as it purports:-
(b) to preclude any person from presenting a complaint to the Tribunal under Article 38.
The applicant's complaints of religious discrimination were Article 38 complaints.
Although the applicant's complaint regarding this second ground under Article 100 was not made as a specific ground within 14 days of the Tribunal's Decision, it is an essential allegation by the applicant challenging the Tribunal's jurisdiction and therefore must be considered.
- Dealing with the applicant's claim under Rule 10(1)(e). Whilst the Tribunal has a discretion to review its Decisions on this basis that discretion is not boundless, it must be exercised judicially having regard to the interests of not just the applicant but of all interested parties and must be considered in the light of the public interest requirement that there should be finality of litigation. These guiding principles were set out in Flint –v- Eastern Electricity Board [1975] ICR 369. Case law has further refined the circumstances in which a review application on this ground will be allowed. These circumstances fall into two broad categories, namely: cases in which there has been a 'procedural mishap' and those in which the Tribunal's Decision has been undermined by events occurring shortly thereafter. Taking the Tribunal's foregoing findings into consideration the Tribunal is not satisfied that the applicant comes into either category. The Tribunal is satisfied that proper and fair procedures led to the settlement of the applicant's case and that that settlement was properly recorded in accordance with his wishes. Further, the Tribunal is satisfied that the public interest requirements of finality of litigation overrides any consideration of the applicant's regrets about his singing the Terms of Settlement. Were it not so then it is likely that great expense, uncertainty and delay would be brought to bear on an already over-burdened Tribunal system. Accordingly the Tribunal dismisses the applicant's application for review on this basis.
- The Tribunal now turns to the provisions of Article 100 of the Order as it relates to this case. The applicant contends that, as the Terms of Settlement were drawn up without the advice and assistance relating to compromise agreements as outlined in Article 100(3) of the Order, the agreement whereby he withdrew his complaints is void and his complaints should be re-listed for hearing. The Tribunal does not accept the applicant's interpretation of Article 100 for the following reasons:-
In the first place, such an interpretation is factually incorrect in that the applicant was not precluded from presenting a complaint to the Tribunal. Far from being precluded or prevented from presenting a complaint, the applicant had an extant complaint which he had presented to the Tribunal and which he opted to withdraw. In such circumstances the Tribunal cannot accept that the applicant had been precluded from presenting a complaint within Article 100-(1)(b).
In the second place, once an Order has been made which has the effect of disposing of a complaint the protective rules on contracting out no longer apply. In this case the applicant asked the Tribunal to make an Order allowing him to withdraw his complaints on foot of a settlement. The Tribunal made the Order on 19 November as requested. According to Times Newspapers -v- Fitt {1981} ICR 637 it is thereafter not possible for a Tribunal (save in circumstances which have not been alleged in this case) to re-open a case on the grounds that the settlement had been made outwith the provisions of Article 100(3).
For the reasons appearing above the Tribunal dismisses the applicant's application for review on this ground.
- Taking all the foregoing into consideration the Tribunal dismisses the applicant's application for review.
Chairman:
Date and place of hearing: 6 September 2002, Belfast
Date decision recorded in register and issued to parties:
