FAIR EMPLOYMENT TRIBUNAL
CASE REF: 118/05FET
817/05
CLAIMANT: Joseph W Downey
RESPONDENTS: 1. Helen McClenaghan
2. Southern Education and Library Board
3. Kathleen Ryan
DECISION ON APPLICATION FOR REVIEW
The decision of the Tribunal is that it has no jurisdiction to consider the claim which has been stayed following an agreement reached between the parties in settlement of the claims with the assistance of the Labour Relations Agency or to vary the said agreement.
Constitution of Tribunal:
Chairman (sitting alone): Mr S A Crothers
Appearances:
The claimant represented himself.
The respondent was represented by Mr A. Colmer, Barrister-at-Law, instructed by the Education and Library Board Solicitors.
- The issue before the tribunal was to determine whether the tribunal has jurisdiction to consider the claim which has been stayed until further order following an agreement reached between the parties in settlement of the claim with the assistance of the Labour Relations Agency. The case had been listed as a Pre-Hearing Review but was approached by both parties as a review hearing and was treated as such by the Tribunal.
- The claimant had forwarded correspondence to the tribunal office following the decision by the tribunal dated 23 February 2007 that "the claim is stayed until further order. The parties reached an agreement in settlement of the claim with the assistance of the Labour Relations Agency". The claimant focussed largely on paragraphs 4.1 and 4.2 of his correspondence to the tribunal dated 14 March 2007. The relevant section reads as follows:
"The following matters should be addressed before closure:
- .1 Mrs McClenaghan's recognition of "substantial service" (10 July 2003) by compensation for the loss of continuity of "career" by "feelings of hurt" … "by reason of the matters complained of". Power to the complaint, I studied to create a client orientated map service second to none as testified by professional and public in both communities. A life-time of successful personal public service endured under traumatic times power to this dispute should be considered.
- .2 As the SELB solicitors 20 October 2006 contrary to Mrs McClenaghan on 18 October 2006 do not recognise "Disciplinary ill health Dismissal". Thus this so-called ill health dismissal (without OHU support) should be accompanied by a reference to a potential future employer empathizing with the SELB's own words: "feelings of hurt .. by reason of the matters complained of". (After all Mrs Ryan on the 180303 ordered me to "Invoke" the investigation as exposed by my letter 060207. I should not have been dismissed during my requested investigations just because I remained on sick leave until transfer was effected.)
Mrs McClenaghan at this opportunity in time should earnestly resolve these outstanding matters to activate a "satisfactory sufficient". Closure (Clause 6) of the dispute settlement in cases will then have been implemented by informed consent, and I will then immediately direct the tribunal that the cases be closed".
- The tribunal heard submissions from the claimant who had been served with a copy extract from Harvey on Industrial Relations and Employment Law ("Harvey") in relation to challenging the validity of a conciliated agreement and a copy of an Industrial Tribunal Decision in the case of Patricia Morrison v 1. Mr A Hall, 2. East Antrim Institute of Further & Higher Education case ref 00148/00. He was also provided with a copy of the grounds for review under Rule 30 of the Fair Employment Rules of Procedure at the hearing. The claimant stated that he wished the tribunal to vary the conciliation agreement entered into by the respondents and himself and signed by both parties on 19 February 2007 under the auspices of the Labour Relations Agency. Such a variation should include what he termed "grossing up" in relation to the amount of compensation and the equivalent of a reference by the respondents. He further submitted that under the grounds for review, new evidence, in relation to grossing up, had come to light after the tribunal decision to stay the proceedings. However, the claimant made clear that he had received the sum referred to in the conciliation agreement and that he was not challenging the agreement but simply wished to have it varied in the respects referred to. He did not make a case of economic duress or mistake as referred to in the tribunal decision and the extract from Harvey forwarded to him. Mr Colmer on behalf of the respondents, submitted that Rule 30(3)(d) of the Fair Employment Tribunal Rules of Procedure could not be used by the claimant in requesting a review of the tribunal decision as the "grossing up" he referred to was an arithmetical or legal formulation and did not represent new evidence. Furthermore, relying on the authorities referred to in the extract from Harvey he submitted that the tribunal had no jurisdiction on the basis of mistake or economic duress to set aside the conciliation agreement. He also submitted that the tribunal had no jurisdiction to vary the agreement in the respects requested and that it would be contrary to the interests of justice to do so given that the claimant had already encashed the compensation monies and was not just asking for more money but also a reference. The claimant had earlier stated in submissions to the tribunal that the agreement arrived at under the auspices of the Labour Relations Agency had not been entered into by him against his will.
- The law in relation to the matter is governed by the Fair Employment Tribunal Rules of Procedure in relation to Review. The extract from Harvey (Division T Section A (20) at para 694 et seq.) and the cases referred to therein were also considered by the tribunal. In addition, in the case of Clarke and others v Redcar and Cleveland Borough Council; Wilson and others v Stockton-on-Teesborough Council 2006 IRLR at 324 Judge McMullan made clear that "the ACAS officer (the equivalent in this jurisdiction being the Labour Relations officer) has no responsibility to see that the terms of the settlement are fair on the employee … the ACAS officer must never advise as to the merits of the case … indeed it might defeat the officer's very function if she were obliged to tell a claimant, in effect, that they might receive considerably more money". He added that "it is not for the tribunal to consider whether the officer correctly interpreted her duties; it is sufficient that the officer intended and purported to act under the section". He further pointed out that "ACAS's view of its duties and practice since its foundation has been that its officers do not advise on the merits of a proposed settlement.
- The tribunal extended time for the claimant to bring a review application.
- The tribunal, having carefully considered the submissions from both parties, together with the relevant rules and case law together with the extract from Harvey on Industrial Relations and Employment Law, concludes that it has no jurisdiction to consider the claim which had been stayed until further order following an agreement reached between the parties in settlement of the claim with the assistance of the Labour Relations Agency, or to vary the said agreement.
Chairman:
Date and place of hearing: 24 April 2007, Belfast.
Date decision recorded in register and issued to parties:
