16 Kennedy v JAH Humphrey (t/a Humphrey Agriculture) & Anor (Application for Review) [2004] NIIT 3483_01 (17 February 2004)


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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kennedy v JAH Humphrey (t/a Humphrey Agriculture) & Anor (Application for Review) [2004] NIIT 3483_01 (17 February 2004)
URL: http://www.bailii.org/nie/cases/NIIT/2004/16.html
Cite as: [2004] NIIT 3483_01, [2004] NIIT 3483_1

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 3483/01

    APPLICANT: William Kennedy

    RESPONDENTS: 1. J A Humphrey T/A Humphrey Agriculture

    2. Nicobrand Limited

    DECISION ON APPLICATION FOR REVIEW

    The unanimous decision of the tribunal is that the applicant is refused his application for a review of the Tribunal's decision.

    Appearances:

    The applicant appeared in person with Mr G McLaughlin.

    The respondent was represented by Ms M Anderson, Peninsula Business Services Limited.

  1. On 8 and 9 April, 30 June, 1 July and 9 July 2003, at Belfast an application for unfair dismissal, breach of contract and constructive dismissal against the respondents was heard.

  2. The Tribunal dismissed all of the applicant's claims.

  3. The Tribunal's decision was issued in summary form on 21 August 2003 and in extended form on 17 September 2003.

  4. By letter of 26 August 2003 the applicant requested, inter alia, a review of the Tribunal's decision. On 27 August 2003, by letter, the applicant confirmed his request for a review of the Tribunal's decision on the grounds that new evidence had become available the existence of which was not reasonably known or foreseen and that the interests of justice required a review.

  5. The Office of Industrial Tribunals and the Fair Employment Tribunal ("OITFET") wrote to the applicant on 25 September 2003 seeking the grounds in full of his application for a review.

  6. The applicant submitted a detailed submission of his reasons and 3 grounds for seeking an application for a review that was received at OITFET on 29 September 2003. He wrote again to OITFET on 11 October and 24 November 2003 making additional comments about the Tribunal's decision.

  7. Accordingly the applicant's application for a review of the Tribunal's decision was listed for 16 and 17 February 2004.

  8. The applicant's grounds for seeking a review of the Tribunal's decision, as set out in his written submission were:-

    9. (a) That there were errors/defaults on the part of the Tribunal Office/Tribunal.

    (b) New evidence had become available and other evidence emerged the existence of which was not reasonably foreseen.

    (c) The interests of justice require such a review.

  9. In support of his contentions, the applicant relied on his detailed written submission of 5 parts that dealt with the 3 grounds set out above and included a section on "evidence which should have been discounted", "comments on extended decision" and "concluding remarks".

    10. At the hearing the applicant relied on his submission as outlining his reasons for an application for review. Both the applicant and Mr McLaughlin amplified his submission as they felt necessary.

  10. The Tribunal was not satisfied that the first ground for a review had been established. In so concluding it took into account the following matters:-

    11. (a) The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996 ("The 1996 Rules") Rule 11(1)(a) permit a review on the ground that "the decision was wrongly made as a result of an error on the part of the tribunal staff". It does not extend to defaults of the staff or errors/defaults on the part of the Tribunal.

    (b) The errors relied on by the applicant were:-

    (i) That he objected to the inclusion of 40% of the documents included in the bundle of documents prepared by the respondents, and

    (ii) That the OITFET had not replied to his letter of 13 June 2002.

    (c) The applicant's letter of 13 June 2002 did not object to any specific items of documentary evidence, nor seek their exclusion. In fact the letter stated that he would like, "… all the foregoing information added to my file for consideration by the Tribunal Panel" and that was done.

    (d) The OITFET did reply to his letter of 13 June 2002 by letter of 9 July 2002 agreeing to his request to put the information before the Tribunal at the hearing.

  11. The Tribunal was not satisfied that the second ground of the applicant's application for a review had been established. In so concluding the Tribunal took into account the following matters:-

    12. (a) Paragraphs 1 to 17 did not disclose any new evidence.

    (b) The applicant accepted that a number of the paragraphs contained evidence that was not new but added that such matters had not been raised by him because his medical situation was such that he was not thinking straight.

    The medical evidence adduced by the applicant did not support his contention. At the original hearing the applicant did not make such a complaint nor did he exhibit difficulties in presenting or making his case.
    (c) The 1996 Rules do not confer on the Tribunal a discretion to disapply the rigors of Rule 11(1)(d) or to amend it.

  12. The Tribunal was not satisfied that the third ground of the applicant's application for a review had been established. In so concluding the Tribunal took into account the following matters:-

    13. (a) The applicant did not contend that either of the 2 usual types of case where the interests of justice ground is relied on, i.e. that there had been a procedural mishap or that the decision had been undermined by events occurring after the decision had been given, applied in this application.

    (b) Having considered carefully the applicant's 24 paragraphs in support of this ground, amplified by the oral submissions and argument of the applicant and Mr McLaughlin, neither a procedural mishap nor an undermining of the Tribunal's decision by events occurring after the decision were demonstrated.

    (c) The applicant did not advance any other argument that seemed to the Tribunal to fall within the interests of justice ground.

  13. The Tribunal considered the remainder of the applicant's written submissions. The other sections of it did not disclose any other information or matters that could fall under the grounds relied on by the applicant in support of his application for a review.

  14. The Tribunal accordingly refuses the applicant's application for a review of the Tribunal's decision.

    15. Chairman:

    Date and place of hearing: 16th & 17th February 2004, Belfast

    Date decision recorded in register and issued to parties:

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