Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REF: 160/10

1209/10

1646/10

 

 

CLAIMANTS: 1. John Catterson

2. Francis McEldowney

 

 

RESPONDENT: 1. Gavin Kelly t/a Kelly Plant Hire

2. KPH Groundworks (Ire) Ltd

3. KPH Plant Hire & Contracts Limited

4. Gavin Kelly of KPH Plant Hire & Contracts Limited

 

 

 

DECISION ON APPLICATION FOR REVIEW

 

The decision of the tribunal is that on foot of Rule 36 (3) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the tribunal grants the application to review the tribunal’s decision as promulgated and the tribunal orders that the decision as originally promulgated be amended to read “The claim 1209/10 is dismissed as the first named claimant at the outset of the hearing indicated that same was to be withdrawn, that the claimants were unfairly dismissed by the third named respondent who accordingly is liable to pay the first named claimant compensation totalling £5,461.56 and the second named claimant the sum of £6,136.86.  The first, second and fourth named respondents are dismissed from the claim as they were not the claimants’ employer at the relevant time, namely the relevant effective date of termination of employment”.  In all other respects, save as hereby amended, the tribunal’s decision as promulgated shall stand.

 

 

Constitution of Tribunal:

 

Chairman: Ms M Sheehan

 

Members: Ms M Ferguson

Mrs T Cregan

 

 

 

Appearances:

 

The claimants were not represented at hearing or in attendance.

 

The respondents were not represented at hearing or in attendance.

REASONS

 

1. In this matter the unanimous decision of the tribunal was that the claimants were unfairly dismissed without notice by the respondent.  The dismissal was related to a redundancy situation arising within the third named respondent’s business.  The tribunal had understood the first named claimant’s representative to be seeking to join as a party to the action the Department for Employment and Learning, Redundancy Payments Service and had ordered they be joined with their consent as a fifth named respondent. The tribunal’s decision was promulgated on 11 February 2011.

 

2. By letter dated 21 February 2011 the fifth named respondent, wrote to the Office of the Industrial Tribunal and Fair Employment Tribunal (“the Office”) requesting that the order of the tribunal joining them by consent be reconsidered as they had no record of any such consent being furnished to either party.  It was determined by the Chairman of the tribunal that this correspondence be treated as an application for review in the interests of justice.

 

3. The parties were issued with letters on 28 February 2011 setting out the reasons for the review and requesting an indication as to whether a review without hearing or oral hearing was required.  Responses were requested by 18 March 2011.  A response was received from the second named claimant only indicating that they did not object to a review without a hearing.  The matter was duly listed for consideration by the tribunal on 3 May 2011.  The tribunal sat to reconsider their decision in light of the written submissions contained within the correspondence.

 

 

THE SUBMISSIONS

 

4. The tribunal considered both the correspondence of the Department for Employment and Learning and the various letters sent to the tribunal in December 2010 by the solicitors on record for the first named claimant.  The application of the Department for Employment and Learning is to be removed as a respondent from the proceedings as they had no pre knowledge of the matter and did not or would not have consented to be so joined in the circumstances of this dismissal.  The correspondence on the file held within the Office of the Industrial Tribunals and Fair Employment Tribunal was between the solicitors on record and the Insolvency Service within the Department of Enterprise Trade and Development.  The first named claimant had sought their agreement, in light of the insolvency of the third named respondent, to being joined as a party to the proceedings and for the hearing of the proceedings to continue on 13 December 2010.  On the morning of the hearing there was some confusion regarding the continuation of the claim of the second named claimant to hearing in light of the position of the third named respondent who was in compulsory liquidation.  After a short delay the tribunal panel was advised that consent had been obtained to the hearing proceeding in respect of the second named claimant.  The tribunal did not retain a copy of that fax when they retired to consider their decision. 

 

 

THE TRIBUNAL’S DETERMINATION

 

5.               As is mentioned in the decision as promulgated, there was an issue raised regarding the hearing of the proceedings with regard to the second named claimant

and consent was sought for the continuation of the proceedings from the relevant department in light of the insolvency of the third named respondent.  The notes of the tribunal members contain reference to RPS (Redundancy Payment Service) when it is clear that it should have referred to Official Receiver or Insolvency Service.  The tribunal considering all the correspondence now available to them conclude that it would be inappropriate to join the Insolvency Service as a respondent.

 

6.               It is clear the decision of the tribunal to join the Department for Employment and Learning, Redundancy Payments Service was made when that party to the decision had not received notice of the proceedings leading to the decision.  The conclusion is that the tribunal’s decision as promulgated cannot stand.  The decision therefore must be revoked in part.

 

7.               On foot of Rule 36 (3) of the Rules the tribunal has reviewed the tribunal’s decision as promulgated.  Paragraphs 2 to 34 remain unchanged.  Paragraphs 37 and 38 are renumbered paragraphs 36 and 37.  The tribunal orders that paragraphs 1 and 35 of the decision as originally promulgated be removed in its entirety.  Paragraph 8 as set out below should be read as paragraph 1 of the decision.  The tribunal orders that paragraph 36 of the decision as originally promulgated be amended as set out in paragraph 9 below which should be read as paragraph 35 of the decision.

 

8.               As a preliminary issue the first named claimant had made application in correspondence dated 1 December 2010 to join the Insolvency Service as a respondent under Rule 10 (1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  The application had not been granted prior to the morning of hearing and was not renewed at hearing.  The tribunal did not consider that the Insolvency Service “may be liable for the remedy claimed” and therefore determined there was no grounds for making them a respondent.

 

9.               “The tribunal therefore orders as follows:-

 

a. That the first, second and fourth named respondents be dismissed from these proceedings as they were not the employer of the claimants at the relevant date of dismissal.

 

b. That the third named respondent is ordered to pay to the first named claimant the sum of £5,461.56 as set out in paragraph 31 above and to the second named claimant the sum of £6,136.86 as set out in paragraph 34 above.

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing: 3 May 2011, Belfast.

 

Date decision recorded in register and issued to parties: