Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   1075/12

 

 

 

CLAIMANT:                      Carol Whelan

 

 

RESPONDENT:                Northern Ireland Blood Transfusion Service

 

 

DECISION ON A REVIEW

My decision on a review is that I decline to revoke my decision of 7 January 2013, issued to the parties on 8 January 2013, dismissing the claimant’s claims.

 

Constitution of Tribunal:

Chairman (sitting alone):           Mr D Buchanan

 

Appearances:

The claimant was represented by Mr M O’Brien, Barrister-at-Law, instructed by Patrick Fahy & Company, Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Directorate of Legal Services, Business Services Organisation.

 

1(i)     This is an application by the claimant to review my decision, issued on 8 January 2013, to dismiss her claims to the tribunal for non-compliance with the terms of an ‘Unless Order’ dated 18 December 2012.

 

 (ii)     The grounds on which a review was sought, as opened to me at the hearing on 13 May 2013 by the claimant’s counsel, were that the interests of justice required a review, and that the claimant and her solicitors did not receive the ‘Unless Order’,         non-compliance with which led to her claims being struck-out.

 

 (iii)     It was accepted by the claimant’s counsel that her application for a review had been made outside the time-limit of 14 days of the date on which the decision had been sent to the parties.  Consequently, the issues for determination by the tribunal were:-

 

“(a)     whether or not it was just and equitable to extend the time for making an application for review; and

 

 (b)     whether or not the claimant and/or her solicitors had received the ‘Unless Order’.”

 

(iv)     These matters could only be determined by hearing evidence.  The review hearing had originally been listed for 22 April 2013.  However, on that occasion only counsel for the claimant attended.  Neither she nor her solicitor were present, and it was necessary to adjourn the hearing of the review.  Costs were awarded against the claimant.

 

 (v)    In order to determine the issues set out at sub-paragraph (iii) above, I heard evidence from the claimant’s solicitor, Mr Noel O’Kane, and from the claimant.

 

         I also had regard to documentary evidence to which I was referred.

 

 (vi)    I begin in the succeeding paragraphs by setting out the history of these proceedings, which is a sorry saga.

 

2(i)     By a claim form presented to the tribunal on 13 June 2012 the claimant alleged that the respondent had discriminated against her on the grounds of disability and           part-time status, had breached her contract of employment, and had unfairly dismissed her.

 

         On 13 June 2012 the respondent was granted an extension of time to lodge its response, and this was done on 14 August 2012, the date to which time had been extended.

 

(ii)      On 26 September 2012, in accordance with the practice of the tribunal in cases which include a claim of discrimination, a Case Management Discussion was held before me to progress the matter to hearing.  The Record of Proceedings issued on 27 September 2012.  It recorded that a draft list of the legal and main factual issues had been provided by the respondent, who would consider any amendments proposed by the claimant’s legal representatives.

 

         In this regard, I directed that the final list of issues be lodged with the Office of the Tribunals by 10 October 2012.  I also directed, that in relation to the exchange of witness statements, those of the claimant be provided by 10 December 2012.

 

 (iii)    A final list of issues was not in fact lodged by 10 October 2012.

 

         I am satisfied by the e-mail traffic between the claimant’s solicitors and the respondent’s solicitor that the latter is entirely blameless in this regard, that she made every effort to attend to this matter, and that she received no co-operation from the former.  At her request a further Case Management Discussion was arranged, to be held on 29 October 2012, to deal with the non-submission of the issues  It was only after this Case Management Discussion had been arranged, and the respondent’s solicitor indicated to the claimant’s solicitor that the respondent would be seeking its costs in relation to the Case Management Discussion, that the list of issues was agreed by the claimant’s solicitors and submitted to the Office of the Tribunals on 25 October 2012.

 

 (iv)    At the Case Management Discussion on 26 September 2012, it had been agreed by the parties that the hearing should take place from 11 – 15 March 2012, and on 31 October 2012, the formal Notice of Hearing for those dates was issued on behalf of the Secretary of the Tribunals.

 

3(i)     As indicated at paragraph 2(ii) above, the claimant’s witness statement and those of anyone giving evidence on her behalf, were to be provided by 10 December 2012.

 

          This was not done as required.

 

(ii)      On 12 December 2012 the respondent’s solicitor wrote to the tribunal pointing this out, stating that in the absence of the claimant’s evidence and medical evidence as to her disability, she was unable to make arrangements to have the claimant medically examined on behalf of the respondent, and alluding to the risk that the hearing dates were in jeopardy.

 

         The claimant’s solicitors were copied in on this correspondence.

 

(iii)     On receipt of this correspondence, the file was placed before me and an ‘Unless Order’ was issued on 18 December 2012 to the claimant and her solicitor putting them on notice that unless witness statements (including any statement of medical evidence) were provided by 2 January 2013 the claimant’s claims to the tribunal would be struck-out for failure to comply with the Order of the Tribunal, without further notice or hearing.

 

         It was recorded on the tribunal file that the ‘Unless Order’ was issued to the claimant, her solicitors, the respondent and the respondent’s representative.  It was sent to the claimant’s solicitors and the respondent’s representatives by DX and to the claimant by post.  Postal correspondence from the Tribunal Office is franked with the tribunal’s address.  No postal correspondence has been returned by Royal Mail.

 

(iv)     On 19 December 2012, the day after issue, the respondent’s solicitor sent a letter to the claimant’s solicitor’s DX facility, drawing attention to the ‘Unless Order’ and stating that she “[looked] forward to hearing from you in relation to same as soon as possible’.  A copy of this letter was produced at the review hearing and put to the claimant’s solicitor in cross-examination.  He stated that it was the first time he had seen it.

 

4(i)     On 4 January 2013 the respondent’s solicitor notified the Office of the Tribunals of the claimant’s non-compliance with the ‘Unless Order’.

 

 (ii)     On 7 January 2013 I signed a decision dismissing the claimant’s claim as she ‘[had] failed to comply with the Order dated 26 September 2012, having been put on notice on 18 December 2012 that her claim be dismissed unless she complied with the said Order’.

 

 (iii)     The decision dated 7 January 2013 was recorded in the Register and issued to the parties on 8 January 2013.  There is no suggestion that it was not received by the claimant’s solicitors – indeed on the contrary its receipt by them on 9 January 2013 ultimately led to this review.

 

 (iv)     The time-limit for reviewing the decision issued on 8 January 2013 expired on 22 January 2013, subject to the discretion of a Chairman to extend it if he considered that it was just and equitable to do so. 

 

5(i)     The case file records that on 27 February 2013, Mr Adrian O’Kane, a senior partner with the claimant’s solicitors, telephoned the Office of the Tribunals enquiring if the ‘Unless Order’ of 18 December 2013 had been issued to them.  When told that it had, he is recorded as stating that he did not receive it, nor did his client, and that he would be writing to the tribunal to confirm this.

 

 (ii)     The next development took place on 6 March 2013, when the claimant’s solicitors wrote to the Office of the Tribunals.  The letter stated that neither the claimant nor the solicitors had received the ‘Unless Order’.  It went on to say that Mr Adrian O’Kane had telephoned the Office of the Tribunals on two occasions in January 2013 to ascertain the position, but that it was only on 27 February 2013 that a reply was received to his enquiry.  There is only a record of one telephone call by Mr O’Kane in the tribunal file, that on 27 February 2013.

 

          The letter went on to request that the matter be re-listed as soon as possible in order to hear representations from the claimant’s solicitors.

 

          The letter of 6 March 2013 did not specifically request a review, which would have been the appropriate application, but I gave a direction that it should be treated as such an application.

 

6(i)     At the hearing on 13 May 2013 Mr Adrian O’Kane who, as is clear from the correspondence, played a role in this matter after the decision dismissing the claims issued on 8 January 2013 (in terms of writing to, phoning and making enquiries of the Office of the Tribunals) did not give evidence.  This was notwithstanding the fact that the original review hearing on 22 April 2013 had been adjourned to enable the claimant to call all relevant witnesses.

 

 (ii)     Mr Noel O’Kane, solicitor, gave evidence that he had worked in the claimant’s solicitors’ office since December 2011, and had had carriage of her case from the beginning of 2013.  Previously it had been the responsibility of another solicitor who had left on 4 January 2013.  The decision of 8 January 2013 striking-out the claimant’s claims came to his attention of 9 January 2013 when he was approached by Mr Adrian O’Kane.  He carried out searches in the office and checked the former solicitor’s files but could not find the ‘Unless Order’.  This process of checking the files took him a few days.

 

          He also contacted the client who said that she had not received it.

 

(iii)     Mr Noel O’Kane, when asked in cross-examination why no application for a review was made in the period from 9 January 2013 (when the claimant’s solicitors became aware her claim had been dismissed) until 6 March 2013 (the date of their letter to the Office of the Tribunals) said they had been trying to find out what had happened.  He accepted that they knew there was a decision, and that it had to be reviewed within a short period of time.

 

 (iv)    The claimant gave evidence that she had not received the ‘Unless Order’ though she had received other correspondence about her case from her solicitors and from the Office of the Tribunals.  She did not make the case that she experienced general problems with Royal Mail deliveries.

 

(v)     Mr Noel O’Kane could give no explanation as to why the statements and medical evidence had not been provided by 10 December 2012 (the date they were to be served in accordance with the case-management directions) or why in this case, where the claimant now seeks relief, they had still not been provided by the date of the review hearing. 

 

7(i)     I must first consider whether it is just and equitable to extend time here.  It is clear that the ‘just and equitable’ ground is much broader than the ‘not reasonably practicable’ formula found in other areas of employment law, and gives tribunals a wide discretion to extend time.  This discretion should not be exercised restrictively.  However, this discretion is not limitless.  Time-limits exist for a purpose, and should be observed and other considerations, such as finality of litigation, must also be given weight.  (See, by way of example, Mills  v  Marshall [1996] IRLR 494 EAT.

 

(ii)      In this case the length of the delay in making an application for a review has been substantial – from 9 January 2013 until 6 March 2013.  No satisfactory reason for the delay has been given.  Mr Noel O’Kane stated in evidence that the firm was trying to find out what happened.  But they knew what had happened.  Their client’s claim had been struck-out, and it was because of non-compliance with an ‘Unless Order’.  Enquiries about, and searches for, the ‘Unless Order’ were not going to advance the matter substantially.  In any event, the searches of the office files only took a few days.  The matter cried out for the making of a prompt review application.  This was not done.

 

         This also took place against a background of non-compliance with other directions of the tribunal, namely the failure by the claimant’s solicitors to agree issues.

 

 (iii)     The prejudice to the claimant here, in striking-out her claim, is obvious.

 

          I do not accept, however, that there is no prejudice to the respondent.

 

Witness statements and the medical evidence have still not been provided, and it does not know the detailed case which it has to meet.  Again, I find it surprising and concerning that the claimant, who is in effect seeking relief from the tribunal, had not made any attempt by the date of the review hearing to provide the outstanding evidence.

 

(iv)     I therefore do not consider that it is just and equitable to extend the time for bringing a review.

 

8(i)     Had I, contrary to my conclusion at paragraph 7(iv) above, decided to extend time, I would nonetheless have refused this review application.

 

 (ii)     The effect of Rule 60(2) of the Industrial Tribunals Rules of Procedure 2005 and Section 24 of the Interpretation Act (Northern Ireland) 1954 is that once it is shown that a letter has been properly addressed, stamped and posted to a party, there is a presumption that it was served on the person to whom it was sent, and it is for him or her to show that he did not actually receive it.

 

 (iii)     Here the notices containing the ‘Unless Order’ were sent to both the claimant and her solicitor, but by different methods.  The postal correspondence was franked and bore the tribunal’s address.  They have not been returned to the Office of the Tribunals by Royal Mail.  No other post sent from the tribunal in this matter has gone astray or has been returned undelivered.

 

          Significantly, when the ‘Unless Order’ was issued, the respondent’s solicitor, on receipt of it, drew the attention of the claimant’s solicitor to it, not by post, but also through the DX system.  Also of significance, the evidence is that the communication from the respondent’s solicitor sent independently of the Tribunal Office also did not come to the notice of the claimant’s solicitors.  However, no reason or explanation as to why this was the case has been given to me. 

 

(iv)     In these circumstances I am not satisfied that the claimant or her solicitor did not receive the ‘Unless Order’.

 

9        In these circumstances I decline to revoke the decision which I made on 7 January 2013, issued on 8 January 2013, dismissing the claimant’s claims.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:         13 May 2013, Belfast

 

 

Date decision recorded in register and issued to parties: