THE INDUSTRIAL TRIBUNALS

CASE REF:  5780/09

CLAIMANT:		Kenneth Crabbe 

RESPONDENT:	Lorraine and Oswald Smyth 
T/A Galgorm Castle Bar and Restaurant

DECISION ON A HEARING FOR A REVIEW
OF THE DECISION OF THE TRIBUNAL DATED
15 DECEMBER 2009

The decision of the tribunal is that that the respondent's application for a review of the Tribunal's decision in so far as it refers to the calculation of the compensatory award by reference to gross pay is varied, and the claimant is awarded £5107.91 in respect of the compensatory award.   The application for review in so far as it refers to all other matters is refused.

Constitution of Tribunal:
Chairman:		Mrs A Wilson
Members:		Mr N Wilkinson
			Mrs M Gregg

Appearances:
The claimant appeared in person and was unrepresented.  
The respondent was represented by Mr Hamill, Barrister-at-Law. 

Reasons

1.	The tribunal issued a decision dated 15 December 2009 finding that the claimant was unfairly dismissed by the respondent and awarding compensation under a number of headings.  The award included a compensatory award calculated on the basis of gross pay.

2.	By letter dated 23 December 2009 the respondent sought a review of the tribunal decision in the following terms:-

		"We refer to the above matter and the decision of the Tribunal dated 15 December 2009.

	We would respectfully request a review of the decision, specifically a recalculation of the award and a review of the consideration given to the efforts of the claimant to mitigate his loss.

We would ask you to note that the compensatory award has been calculated using the claimant's gross rather than his nett, weekly income.  Furthermore, we would request a review of the overall calculation, in particular the reductions aspect, as this is not clear from the decision.

We confirm that Rule11(4) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 has now been complied with and look forward to hearing from you at your earliest convenience"

3.	The claimant responded to the respondent's application by letter dated 24 December 2009 in the following terms:-
	
"I would like to object to the respondents request for a review of this decision. They have asked for recalculation of the consideration given for my efforts to mitigate my loss. As I demonstrated to the tribunal, I made numerous applications for employment after being automatically unfairly dismissed.  This was accepted by the tribunal as reasonable attempts to find alternative employment considering that I had responded to advertisements, speculatively contacted bars and hotels and also contacted my local job centre.

Furthermore I believe that the Tribunal did consider the reduction provision carefully and that the adjustments made to the award were appropriate, just and equitable.

I feel that the decision made by the Tribunal on the 15th December 2009 was fair and that the Respondents have levied an impractical deadline to their letter dated the 23rd December by asking for a response within 7 days considering that it is Christmas week and any Solicitor that I have tried to contact is now closed over the festive period, leaving me unable to take Iegal advice on this matter.  The Rule 11 that they are citing does state wherever practicable and I would argue that the Christmas period is anything but practicable and feel this is a deliberate attempt to hinder me taking advice and to adjust my response".

4.	Notwithstanding the fact that it appears that the respondent in it's application  has incorrectly relied upon rule 11 of the Industrial Tribunals (Constitution and Rules of Procedure ) Regulations (Northern Ireland ) 2005 [the Regulations] the tribunal considered the  application under  rules 33 to 36 as it appears clear to the tribunal that this is what was intended.

5.	The tribunal considered the respondent's application and the claimant's response under Rule 35 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland ) 2005 [the Regulations] and having decided not to refuse the request for a review, arranged a hearing for the purposes of consideration under rule 36 of the regulations.

6.	In considering the application for review at the arranged hearing, the tribunal considered the letter applying for a review dated 23 December 2009, the reply received from the claimant dated 24 December 2009, the written submissions of the respondent as supplemented by oral submissions and the oral submissions of the claimant.  The respondent clarified that his application was on the grounds provided by rule 34 (e) i.e. that the interests of justice require such a review. 

7.	In the course of his oral submissions the Respondent sought to review the decision of the tribunal in so far as it included compensation for loss of working tax credit in calculating the compensatory award.

8. 	In considering this particular aspect of the review application, the tribunal refuse the application on the grounds that rule 35 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 have not been complied with.

9. 	Rule 35 in so far as it relevant to this issue provides as follows:- 
	
		     35.  - (1) An application under rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties.

		    (2) The application must be in writing and must identify the grounds of the application in accordance with rule 34(3), 

Rule 34(3) provides:- 

(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only -

(a) 	the decision was wrongly made as a result of an administrative error;

(b) 	a party did not receive notice of the proceedings leading to the decision;

(c) 	the decision was made in the absence of a party;

(d) 	new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

(e) 	the interests of justice require such a review.

10. 	The respondent in it's application (or at any time prior to the expiration of the 14 days specified in Rule 35) made no mention either in specific terms or generally of this as a ground for review.  Consequently by reason of 35(2) the tribunal have no jurisdiction to consider it.

11. 	In relation to the respondent's application in so far as it refers to the calculation of the compensatory award by reference to gross pay,  having considered the respondent's submission and having heard from the claimant the tribunal find that this calculation was based on gross pay in error.  As a consequence in the interests of justice and without objection from the claimant, the tribunal unanimously allow the application for review on this point and varies its decision as follows:-

34 weeks x [nett pay] £188.18 = £6,398.12. [paragraph 44 of decision] 

The total amount of compensatory award is varied as a consequence to £8,534.40 reduced by 50% to £4,267.20 [paragraph 44 of decision]

The total award [to include the reduced basic element] is varied as a consequence to £4,643.56 [paragraph 44 of decision].

The total award following an increase in accordance with Article 17(3) of the Employment (Northern Ireland) Order 2003 is varied to £5,107.91 [paragraph 46]. 

12.	The tribunal moved on to consider the respondent's application that the interests of justice require a review of the decision in so far as it relates to " …and a review of the consideration given to the efforts of the Claimant to mitigate his loss and a review of the overall calculation, in particular the Reductions aspect, as this is not clear from the decision" as set out in the letter of the 23rd December 2009.

13.	In his submissions on the first point, the respondent sought to argue that the decision of tribunal "is unreasonable and unsustainable in that the award in respect of loss of earnings fails to take into account the obligation on the claimant to mitigate his loss".

14. 	The respondent did not submit on the second point i.e a review of the overall calculation, in particular the Reductions aspect, as this is not clear from the decision"

15.	In the first instance the tribunal do not accept that in reaching it's decision it did not take into account the obligation on the claimant to mitigate his loss. In it's decision at paragraph 9 the Tribunal records the following finding:-

		"Following the termination of his employment the claimant made reasonable attempts to find alternative employment. He responded to advertisements for bar work, called speculatively to hotels and bars and contacted his local job centre".

	Furthermore at paragraph 44 under the heading The Compensatory Award, the tribunal records it's finding as follows;-
 
		"The Tribunal is satisfied that he made reasonable attempts to secure alternative employment with no success to date".

16.	Furthermore and in the alternative  the tribunal are  mindful of the ruling in the  case of Charles John Graham Fforde v Stewart Gordon Black EAT/68/80 [the Fforde case] in this regard and the following extract in particular:-

		"It is entirely for the Tribunal who hears the case to decide what weight to attach to any particular piece of evidence and when they make a finding in fact such as they have done in this connection this is final and cannot be subject to review or appeal".

17.	The tribunal also have considered the applicable law as summarised in Harvey on Industrial Relations and Employment Law which provides at section T paragraph 1138 . 

		“This ground [the interests of justice require such a review]has been described as 'a residual category of case, designed to confer a wide discretion on [employment] tribunals' (Flint v Eastern Electricity Board [1975] ICR 395 at 401, per Phillips J). But whilst the discretion under para (e) is undoubtedly wide, it is not boundless; it must be exercised judicially and with regard, not just to the interests of the party seeking the review, but also to the interests of the other party and to the public interest requirement that there should, as far as possible, be finality of litigation”. 

18.		It is also clear from Harvey that cases in which the only application is made under para (e) fall into two broad categories: those in which there has been a 'procedural mishap' of one sort or another  and those in which the tribunal's decision has been undermined by events occurring shortly thereafter. Neither category applies here. 

19.	The Fforde case referred to at paragraph 15 also makes it clear that “this ground of review only (emphasis added ) applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.

20. 	Having considered and evaluated the application, the response, the submissions of the parties and the applicable law the Tribunal find that the application in so far as it applies to the points regarding mitigation of loss and a review of the overall calculation is refused on the basis that no grounds have been established for the decision to be reviewed under rule 34(3) and further and in the alternative that there is no reasonable prospect of the decision being varied or revoked.  For these reasons the decision in so far as it relates to mitigation of loss and the overall calculation is confirmed.

Chairman:

Date:	

Date decision issued to parties: