THE INDUSTRIAL TRIBUNALS

CASE REF:  500/08IT

CLAIMANT:			Mr Stephen Ogle

RESPONDENTS:		Chemical Treatment Services Limited

DECISION ON AN APPLICATION FOR REVIEW

The unanimous decision of the Tribunal is that the claimant’s application for a review is dismissed, without further Order, and the Tribunal’s decision as promulgated shall stand and is affirmed.

Constitution of Tribunal:

Chairman                            	Mr J V Leonard

Members:				Ms F Graham
					Mr R Hanna

Appearances:

The claimant was represented by Mr T Warnock, Barrister-at-Law, instructed by Fox & Associates, Solicitors.

The respondent was represented by Mr D Burridge of Peninsula Business Services Limited.

REASONS

1.	The Tribunal’s decision that is now sought to be reviewed (“the decision”) was promulgated on 11 September 2008.  The claimant’s claims to the Tribunal had been of constructive dismissal, breach of contract and unlawful deduction of wages.  The decision was unanimous and determined that the claimant was not constructively dismissed; the remainder of the claimant’s claims were not made out and were dismissed by the Tribunal, without further Order.

2.	By letter dated 24 September 2008 (“the review letter”) the claimant wrote to the Secretary of the Tribunals stating that he wished to apply for a review of the decision. There was a single ground set out in the review letter - that the interests of justice required a review.  It is worthwhile setting out in full the basis upon which the claimant wished to have the decision reviewed. This was as follows:-

“  First - During the hearing the Chairman refused to admit or allow any evidence from either party as to what they thought were the reason or reasons for the breakdown of confidence and trust and indeed the whole working relationship between the claimant and the respondent.  This evidence was crucial to the Claimants case for two reasons.  I was and remain convinced that my problems in (the respondent company) started as a result of a conversation I had with the Respondent’s General Manager, Robin Ferguson, during a working trip to Gibraltar in June 2007 when I told the Respondent of my concerns about the fraudulent practices I had been drawn into in my day to day work in (the respondent company).  Before this trip and conversation I had not had any queries about my work or timekeeping in (the respondent company).  After it everything I did was subject to scrutiny, checking and continual criticism.  Also this evidence was needed to answer some of the adverse comments contained in the respondent’s submission to the Tribunal.  I was criticised for spending time on producing calibration certificates when it was felt that I should have being doing other work.  The explanation for this was that I had to produce these certificates using batch numbers stolen from the chemical manufactures web site.  This takes a lot longer than simply typing in the numbers from batches of chemicals bought in the normal way.  The Chairman’s ruling meant that he was not able to give this explanation.

Second – My initial letter of appointment stated “the normal hours of working are 9.00am—5.00pm Mon-Thurs and 9.00am-4.00pm Fri with one hour for lunch” However the statement of main terms of employment which was agreed some 4 months later contained an error as under the heading Hours of Work it showed “ Your normal hours of work are 39 per week, 9.00am-5.00pm Monday to Friday with a 60 minute break each day”.  In fact 9am to 5pm Monday to Friday is 40 hours.  Under the heading Remuneration, it is stated that my standard wages were based on a 39 hour week with work in excess of 39 hours per week (Mondays to Saturday) treated as overtime and paid at time and a half.  This error was not noticed at the time the terms of employment were agreed and as a result I continued to work the same hours as all other employees [ …..] 9.00am-5.00pm Monday to Thursday and 9.00am-4.00pm Friday which is a 39 hour week as stated in my contract.  This did not become an issue until June 2007 when the working relationship between myself and the respondent broke down.  From that point on I was pressurised to work to 5.00pm on Fridays as part of his normal working week i.e. I was asked to work a 40 hour week but I would be paid for a 39 hour week.  This was confirmed by the respondent’s General Manager during the Tribunal Hearing.  To pressurise me to work extra unpaid hours in this way, equivalent to about 2 weeks unpaid work per year, constitutes a clear and serious breach of contract.  This was not acknowledged during the hearing despite my highlighting it and the respondent’s General Manager agreeing it during cross-examination. “

THE STATUTORY PROVISIONS CONCERNING REVIEW OF THE DECISION

3.	The Industrial Tribunals Rules of Procedure (2005) (“the Rules”) provide for the possibility of a review of any decision.  Rule 34(3) of the Rules provides that a decision may be reviewed on the grounds that the interests of justice require such a review.  Rule 35 of the Rules provides that an application under Rule 34 must be made within a period of 14 days from the date the decision was sent to the parties, unless time is extended.  No jurisdictional issue arose on account of adherence to that time limit.  Rule 34(3) of the Rules provides that the Chairman shall refuse the application if he considers that there are no grounds for the decision to be reviewed under Rule 34(3) or if there is no reasonable prospect of the decision being varied or revoked.  In this matter, the Chairman upon preliminary consideration, determined that the matter ought to proceed to a hearing on foot of Rule 36 of the Rules.  Rule 36(3) provides that a Tribunal or Chairman who reviews a decision may confirm, vary or revoke the decision.  The Tribunal’s determination under Rule 36 of the Rules, together with reasons, is now set out below.

THE SUBMISSIONS

The Submissions for the Claimant 

4.	For the claimant, Mr Warnock of Counsel submitted that the claimant’s grounds for review that been clearly set out in the review letter; these were substantial grounds.  The first ground submitted by Mr Warnock was that the Tribunal had refused, he contended, to allow evidence to be admitted at the hearing from either party as to the reason for the alleged breakdown in trust and confidence between employer and employee in the matter.  The claimant’s case was that the stated breakdown in trust and confidence had arisen from discussions that the claimant had had in Gibraltar with the claimant’s manager, Mr Ferguson, in June of 2007.  The claimant’s case was that the working relationship had changed after that and had resulted in the subsequent problems. At the hearing, so Mr Warnock contended, the claimant had sought to advance certain evidence but he was not allowed by the Tribunal to advance this evidence; that evidence related to the fundamental basis of the constructive dismissal case that the claimant wished to pursue.  

5.	Such evidence as foregoing, Counsel’s submission continued, was admissible in law and was relevant to a key issue in the case.  The claimant now contended that he was rendered unable to respond to allegations made by the respondent in relation to his timekeeping and further, he was unable to cross-examine the respondent and to put the case to the respondent that he had wished to make. Further, he was unable to lead evidence that related to the credibility of the respondent company and to Mr Fergusson in particular. That was the first ground.

6.	Counsel continued - in addition to that first ground, there was also an issue pertaining to the respondent’s timekeeping and wages. In respect of this Counsel’s submission reiterated the content of the review letter (set out in full at paragraph 2 above under introductory word “Second”).  The claimant’s case was that the respondent, in pressurising him, after June 2007, to work extra time, had committed a fundamental breach of contract. The Tribunal had not properly dealt with the claimant’s case in that latter regard.

7.	In order to seek clarification in regard to that latter contention, the Chairman then referred Mr Warnock to the content of the decision as it expressly recorded the findings of fact and the Tribunal’s decision regarding what might be termed the “hours of work, remuneration and wages issue”. The Chairman also drew Counsel’s attention to the case that had been made out expressly by the claimant at the original hearing both in respect of the documentation placed before the Tribunal by the claimant at the hearing (including the originating application) and also the submissions. In order to invite any further submissions desired to be made by Counsel on the issue, the Chairman stated that he was in some difficulty in seeing how the case which was now sought to be made on behalf of the claimant at this review hearing had been made out expressly or impliedly at any stage in the course of the original hearing.  

8.	After having been afforded an appropriate opportunity by the Tribunal and having taken further instructions from the claimant, Mr Warnock on behalf of the claimant then contended that the only point at which the case (that is to say the case referred to in paragraph 6 above) had been expressly made might have been in the course of the claimant’s cross-examination of Mr Fergusson at the original hearing.  

9.	Mr Warnock then submitted that if the case had been put in cross-examination by the claimant, it was an issue which the Tribunal was obliged to consider as such and therefore obliged to dispose of in its determination.  

10.	Counsel then referred to the Tribunal’s “overriding objective”. This is set out in Regulation 3 of the Industrial Tribunals Constitution and Rules of Procedure Regulations (Northern Ireland) 2005. This “overriding objective” is to enable Tribunals and Chairmen to deal with cases justly.  Dealing with cases justly includes, so far as practicable, ensuring that the parties are on an equal footing, dealing with the case in ways which are proportionate to the complexity or importance of the issues, ensuring that it is dealt with expeditiously and fairly, and saving expense.  It is thus provided that a Tribunal or Chairman shall seek to give effect to the “overriding objective” in the exercise of any power given by the said Regulations or the Tribunal’s Rules of Procedure or in the interpretation of the said Regulations or any said Rule.  Counsel also referred the Tribunal to the cases of Flint –v- Eastern Electricity Board [1975] ICR 277 and to Williams –v- Ferrosan Limited (2004) IRLR 607. These latter shall be referred to further below.

The Submissions for the Respondent 

11.	For the respondent, Mr Burridge (who also placed a written submission before the Tribunal) referred to the aforementioned case of Flint and stressed that it was important to ensure that a dissatisfied claimant did not, merely on account of dissatisfaction, have a “second bite of the cherry”.  The “interests of justice” ground of possible review had to be interpreted strictly and with regard not just to the interests of the party seeking to have any decision reviewed but also with regard to the interests of the other (in this case successful) party and, furthermore, the public interest requirement that there should be, insofar as possible, finality of litigation.  

12.	Mr Burridge then proceeded with the submission that the Tribunal’s analysis of the matter was correct; the Tribunal was correct both in its conduct of the proceedings and also in the decision.  The Tribunal had carefully, properly and fully conducted an examination of the events leading up to the claimant’s resignation from the employment.  The Tribunal had properly explored whether any conduct on the part of the respondent had been calculated or likely or sufficient to destroy trust and confidence between employer and employee.  Having conducted this careful examination of the facts, the Tribunal’s decision was that there had been no constructive dismissal in the case.  In respect of the second issue contended by the claimant to form a proper ground for review (again, that referred to in paragraph 6 above), the Tribunal had carefully examined the contract of employment. It was important to stress, Mr Burridge contended, that the contract provided expressly that the claimant could be required to work overtime.  There was no breach of contract whatsoever, either express or implied, on the evidence that had been placed before the Tribunal at the original hearing.  The review could not possibly succeed on that latter ground.

THE TRIBUNAL’S DETERMINATION ON PRELIMINARY CONSIDERATION OF THE GROUNDS ADVANCED FOR REVIEW

13.	The Tribunal, having heard these submissions, retired to consider the submissions made in the matter and the potential grounds for review.  Having given the matter some considerable thought, whilst the Tribunal took the view that an arguable case had been made out which, in the Tribunal’s determination, ought to enable the claimant’s representative to be afforded an opportunity for further submissions in respect of the first ground, the Tribunal was not of that view also in regard to the second ground. The Tribunal noted that it had not recorded nor was it conscious of any case being made out, either expressly or by implication, in the course of the original hearing by the claimant concerning fundamental breach of contract in relation to the “hours of work, remuneration and wages issue”.  The Tribunal noted what was in effect a concession made by Counsel, Mr Warnock, for the claimant, that at no point had this case been expressly put, save that it was contended that certain cross-examination questions levelled by the claimant towards Mr Fergusson encompassed the case.  The Tribunal however had an advantage that was of course not available to Mr Warnock, this being of having conducted the earlier hearing. Thus, without any difficultly and by unanimous decision, the Tribunal was able to reach a determination that at no point in the earlier hearing, whether expressly or by implication, had the claimant made out any case that the respondent had fundamentally breached the contract on account of the “hours of work, remuneration and wages issue”.  The Tribunal had indeed dealt with and disposed of that issue in the decision and had rejected the claimant’s claim for unpaid wages, as is stated and made clear in the decision.  The Tribunal saw before it a case now endeavoured to be made out for the first time at review hearing which had certainly not been made before the Tribunal at the original hearing.  Any Tribunal hearing a case at first instance is obliged only to deal with the case that is made; that cannot be revisited by a dissatisfied party at a review hearing.  Accordingly this part of the claimant’s case is to be rejected as it has no reasonable prospect of success.

14.	The Tribunal reconvened and announced its determination to the parties in regard to the foregoing and then proceeded to invite further argument from the respective representatives regarding the first issue of contention. 

The Further Submissions for the Claimant 

15.	For the claimant, Mr Warnock reiterated his earlier submissions and contended that the claimant had been denied the opportunity to put his case and properly to rely on cross-examination of the respondent and to deal with issues of credibility and with the reason for the breakdown in trust and confidence.  Counsel referred the Tribunal to the case of Trimble –v- Supertravel Limited [1982] IRLR 451 and contended that there had in effect been a “procedural mishap” at the hearing in that the claimant had not been given a proper opportunity to address the Tribunal on a point of substance, that is to say the reason for the treatment of the claimant by the respondent and also to deal with the credibility of the respondent’s witness.

16.	In response to this submission, Mr Burridge, for the respondent, stated that the key issue here was that the Tribunal had quite correctly focussed on the respondent’s conduct in order to examine if any conduct might be deemed to have breached the “trust and confidence” term to be implied into any contract of employment.  On the facts found, it was clear that it did not.  Mr Burridge posed the question – what relevance could a detailed examination (inevitably with two parties giving a different account of events) be to the matter when the Tribunal had, very properly, focussed upon the actual conduct of the respondent as it affected the claimant and when the Tribunal had examined and had assessed the true reason for the contract of employment coming to an end?  Mr Burridge submitted that if one examined the actual conduct of the respondent, there was nothing there upon which any constructive dismissal claim might be grounded. The respondent’s conduct was not causally connected to the reason for the contract coming to an end; there was no causal connection between the alleged repudiation (which was denied) and the claimant’s resignation. The claimant’s submission was not a point of any substance.  What evidence might the claimant have potentially adduced that would in any way affect the issue in the case - whether there was any causal connection?  In any event, the particular case had not been argued by the claimant at the hearing; there had certainly been nothing preventing the claimant at the original hearing from engaging in any cross-examination of Mr Fergusson in regard to the foregoing.  There was simply no case of any substance made out to ground a review.

THE TRIBUNAL’S DECISION

17.	The Tribunal has carefully noted the arguments advanced on behalf of the claimant and the respondent.  The Tribunal begins with a reference to the case of Flint, as mentioned above, and notes the comments of Phillips J in Flint that, whilst the discretion available to Tribunals under the “interests of justice” review provision is undoubtedly wide, it is not boundless.  It has be exercised judicially and having regard to the interests of both parties to any matter and also having in clear focus the public interest in finality of litigation.  A claimant dissatisfied with any decision should not be entitled to have “a second bite of the cherry”, as Mr Burridge put it, just on account of dissatisfaction with the outcome, but without material reason.  From the case of Trimble –v- Supertravel, mentioned above, it is clear (in the circumstances of this case) that there had to have been some manner of what might be termed a “procedural mishap”.  However, the EAT in England, per Hooper J in the case of Williams v Ferrosan Limited, mentioned above, commenting upon the “interests of justice” ground and the Trimble –v- Supertravel case, disapproved of the view (that had been earlier expressed in Moncreiff v MacDonald [1978] IRLR 112) that the review procedure is only available in exceptional cases. This Tribunal concurs with the view that there is no “exceptionality hurdle”, as it was put by Hooper J in Williams v Ferrosan Limited, to be overcome by a party seeking a review. However, there must be a proper judicial exercise of discretion and there must have been some manner of procedural mishap capable of clear identification.

18.	The argument advanced on behalf of the claimant was that the Tribunal had effectively prevented the claimant from putting forward a material part of his case.  In respect of that argument, the Tribunal did draw to the attention of the claimant’s representative in the course of this review hearing that, having been responsible for the conduct of the earlier hearing, the Tribunal had some difficulty in concurring with the case now advanced which was to the effect that the claimant had been entirely prevented by the Tribunal from arguing a material and important aspect of his case.  At the hearing, the Tribunal had certainly discussed with the parties in open tribunal (in the context of furtherance of the Tribunal’s “overriding objective”) the materiality of a part of the case which was before it in the papers. This was the case which appears to be set forth in the claimant’s bundle of documents that had been placed before the Tribunal at the hearing (at page 6 of the claimant’s bundle and immediately following). In the context of these discussions at hearing, the Tribunal had invited the claimant to explain to the Tribunal the materiality of particular allegations made against the respondent by him in these papers. This matter concerned allegations of alleged falsification of calibration certificates and also referred to the claimant allegedly raising these issues with Mr Fergusson whilst in Gibraltar.  

19.	In engaging in these discussions in the Tribunal hearing, the Tribunal was conscious of its obligation to permit the admission of material and relevant evidence on one hand, with the balance to be achieved by the exercise of a corresponding obligation to avoid the Tribunal proceedings improperly being used as a vehicle for making adverse and possibly unjustified comment against a former employer on matters of potentially no materiality to the issues that required to be adjudicated upon by the Tribunal. Therefore, the materiality of any potential evidence to the core issues to be addressed in the matter was central to the issue to which the Tribunal had directed its attention and the attention of the parties in that part of the hearing.  

20.	Thus, when the claimant had been questioned in this regard by the Tribunal in the course of these discussions, the claimant had stated that he could not say definitely that the discussions in Gibraltar were responsible for any difficulties which followed thereafter.  In so stating, the claimant effectively had conceded that any connection was a matter of speculation on his part and no more than that.  Having heard this from the claimant, the Tribunal then, bearing in mind the overriding objective imperative, indicated that it would be better perhaps to hear evidence relating to the actual conduct of the parties leading up to the termination of the contract and to consider any such evidence in some detail. Accordingly (and notably without demur on the part of the claimant) the hearing proceeded on the basis that the Tribunal heard the material evidence as to conduct of the parties and thereafter proceeded to draw conclusions of fact (which material conclusions are of course set out in the decision). This material then, in regard to the actual conduct of the parties, informed the Tribunal’s decision concerning the constructive dismissal issue.  At the time, it appeared to the Tribunal that the claimant had agreed to that course being followed in the proceedings.

21.	The Tribunal notes that at no further stage in the proceedings did the claimant endeavour to adduce any further evidence concerning the alleged falsification of certificates nor indeed concerning the alleged discussions which had taken place in Gibraltar. Further, the claimant was in no way prevented from raising any of these matters in his cross-examination of Mr Fergusson.  However, in an endeavour to afford a measure of fairness to the matter, the Tribunal indeed had intervened at one point to prevent Mr Fergusson in his evidence-in-chief raising issues to address the case which had been made out in the claimant’s papers that were before the Tribunal concerning the Gibraltar matter. The Tribunal’s view was that if the claimant had, as appeared to be the case, accepted that this was immaterial to the Tribunal’s deliberations, it would have been unjust, if the claimant had accepted that proposition, to allow further evidence from the respondent in that regard.  It was on that basis that the Tribunal had proceeded to determine matters of material fact and to reach its determination concerning the unfair constructive dismissal case.

22.	The essential issue in the case is therefore one of materiality. The claimant’s case was not that he had resigned for the reason that he had been allegedly required by his employer to falsify certificates. The case was that Mr Fergusson had unjustifiably scrutinised the claimant’s work, had required him to work overtime and had criticised his work output and that this conduct had amounted to repudiatory breach on the employer’s part. 

23.	It would certainly have been improper procedure on the Tribunal’s part to have effectively permitted the holding of what might have been seen as a “trial within a trial” upon the issue of whether or not the respondent’s business did or did not engage in unfair, or indeed illegal, business practices unless that issue was directly and unavoidably connected with the alleged repudiatory conduct on the respondent’s part.  Any Tribunal is not tasked with conducting an enquiry into whether a respondent’s business practices are proper or otherwise in a constructive dismissal case unless conducting such an enquiry is entirely material to the issues to be determined.  Furthermore, it is to be clearly understood that any party to Tribunal proceedings does not have an unqualified entitlement to have admitted any evidence whatsoever. The Tribunal’s overriding objective, as Counsel for the claimant very properly submitted, has to be strictly applied in any case. 

24.	The allegation of alleged falsification of certificates was not the issue in the case; there was no allegation that Mr Fergusson engaged in any repudiatory conduct before or whilst in Gibraltar. The alleged repudiation is stated by the claimant to have occurred after Gibraltar, not before or during the visit to Gibraltar. Thus the Tribunal focussed its attention upon an examination of any evidence as to whether or not the respondent had engaged in repudiatory conduct in respect of the contract of employment. The Tribunal’s conclusion, based upon the material evidence and findings of fact derived therefrom, as the decision makes clear, is that there was no repudiatory conduct on the employer’s part, on the essential facts of the matter; that was not the reason for the employee leaving employment in this case. The Tribunal in its conduct of the original hearing did not stray improperly from the essential focus of its task in the matter nor did it improperly restrain or curtail the claimant in the presentation of properly material aspects of his case. 

25.	Having noted all of the arguments and submissions in the case, the Tribunal’s unanimous determination is that no “procedural mishap” (of the type described in Trimble –v- Supertravel above) has occurred in this case. Therefore the matter does not fall within the category of cases where it would be appropriate to have a review succeed in the “interests of justice”.  Accordingly, the claimant’s application for a review is dismissed, without further Order and the decision is affirmed.  

Chairman:
	
Date and place of hearing: 26 November 2008, Belfast	

Date decision recorded in register and issued to parties: