McCormick v Department of Economic Development [2002] NIFET 297_98 (2 August 2002)

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URL: http://www.bailii.org/nie/cases/NIFET/2002/297_98.html
Cite as: [2002] NIFET 297_98

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    FAIR EMPLOYMENT TRIBUNAL
    CASE REF: 00297/98FET
    APPLICANT: James McCormick
    RESPONDENTS: 1. Department of Economic Development

    2. Training and Employment Agency

    DECISION ON APPLICATION FOR A REVIEW

    The unanimous decision of the Tribunal is that an application to review the decision issued on 23 October 1998 be refused.

    Appearances:
    The applicant, Mr McCormick, in person.
    Both respondents were represented by Mr N Kelly, of the Departmental Solicitor's Office.
  1. (i) The applicant, Mr McCormick, by letter of 29 June 2002, which he subsequently

    2. confirmed he wished to be treated as an application for review, seeks to review a decision of the Fair Employment Tribunal issued on 23 October 1998, whereby an application made by him to the Tribunal was dismissed.
    (ii) Mr McCormick did not specifically state the ground of review, but it appears to the Tribunal that the appropriate one is that set out in paragraph 10(i)(e) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 1989, namely that the interests of justice require such a review.
    (iii) Mr McCormick's application for a review is, on any basis, considerably out of time. The Tribunal took the view, in the particular circumstances of this case, that a decision on any application for an extension of the time appointed for applying for a review and a decision on the merits of the review stood or fell together. The applicant and Mr Kelly, for the respondents, agreed with this view.
    (iv) The relevant facts and circumstances are now set out in the succeeding paragraphs.
  2. On 30 June 1998, Mr McCormick presented an originating application to the Fair Employment Tribunal alleging that he was discriminated against by the respondents on the grounds of religious belief and/or political opinion in an application to become a member of the Board of the Training and Employment Agency. He was not short-listed for interview. An appearance was entered by both respondents on 28 July 1998.

  3. On 25 August 1998 Mr McCormick wrote to the Office of Tribunals in the following terms "With reference to the above case I am writing to advise you that I am not proceeding with this case at the present time. I reserve the right to raise it again at some future date".

  4. On 27 August 1998 the Office of the Tribunals wrote to the respondents' solicitors informing them that the applicant had given notice of the withdrawal of his originating application, referring to the relevant Regulations providing for dismissal, and asking the respondents if they wished to make any application to the tribunal before the question of dismissal was decided. The respondents were informed that if they made no application to the tribunal within 14 days, their consent to the dismissal would be presumed. The respondents made no application to, or contact with, the tribunal following receipt of this letter.

  5. On 23 October 1998 the tribunal made the Order referred to at paragraph 1(i) above. It was headed "Decision", and stated: "The application is dismissed following its withdrawal without any objections". It was issued to the parties on that date, and they each received a copy of it.

  6. In or around June 2002 the applicant became aware that a case relating to appointments to the Policing Board, which had been attracting publicity in the press, and which the applicant considered raised similar issues to his own, had been listed for a hearing on 28 June 2002. As a consequence he wrote to the Office of the Tribunals on 26 June 2002 enquiring about the status of his case, and asking if he should attend the hearing on 28 June 2002. His attention was drawn to the Order of 23 October 1998, and correspondence then followed with the Office of the Tribunals, with the matter ultimately being listed for the hearing of his application for review.

  7. (i) At the hearing of the application for review Mr McCormick gave evidence

    8. (consistent with what he had previously put in writing) that when he received the dismissal decision of 23 October 1998 he believed that it was a "technicality" – the tribunal's method of stating that the case was not proceeding for the time being, as opposed to being "closed".
    (ii) The applicant stated that at that time he had no legal knowledge, though he was subsequently appointed as a panel member of the Fair Employment Tribunal in late 1999. Even after this appointment, it did not occur to him that "Dismissal" meant that proceedings were at an end.
    (iii) He did not at any time query the decision, and although he heard nothing from the tribunal for over 3½ years subsequent to the making of the Order, he did not make any enquiries as to the progress of his case. He believed the related cases would be "going to Europe" and that "nothing would happen for years".
    (iv) Mr McCormick very fairly accepted that his letter of 25 August 1998 could have been better drafted, and that, with hindsight, he should have queried the Order at the time. He also accepted that he had not been misled by the respondents or their legal advisors.
  8. The respondents and their legal advisors accepted the Order of 23 October 1998 at face value. The proceedings were over as far as they were concerned. Additionally, in the intervening period, they had destroyed all papers relating to the particular recruitment competition in which the applicant had been unsuccessful. These papers had been held for well over 2 years, but had been destroyed, quite properly, in accordance with guidance from the Commissioner for Public Appointments. This recommended that information of this nature should be stored for a minimum of 2 years.

  9. (i) The tribunal is not without sympathy for the applicant. His letter of 25 August 1998

    10. was characterised by ambiguity and lack of clarity. It would have been preferable had clarification of its contents been sought before the Order for dismissal was made.
    (ii) Notwithstanding the background to the making of the Order, it was nonetheless in clear and unequivocal terms, and the tribunal, particularly the lay members, consider that its use of words such as "Decision", "dismissal", and "withdrawal" would have conveyed their normal English usage and meaning to any reasonable person. Mr McCormick was a former Principal of a Further Education College, and someone who, while he may not have had any great legal knowledge in 1998, had clearly sufficient knowledge of industrial relations to merit appointment as a lay member of the Fair Employment Tribunal the following year.
    (iii) We also find it surprising that someone who felt aggrieved enough to bring proceedings in the first place made no enquiries about the progress of his case for over 3½ years.
  10. The respondents in this case have throughout acted properly. The applicant's complaint relates not to an unsuccessful interview for appointment, but to his failure to be short-listed. This was an exercise conducted on paper by considering the contents of application forms. While it might still – albeit with difficulty – be possible to identify the short-listing panel, at this stage they would find no evidence which would be of assistance to a tribunal in the absence of the documentation on which they relied at the time.

  11. The Tribunal has not found this decision an easy one and is conscious that the applicant, despite the failings on his part to which we have drawn attention, must inevitably have a lingering sense of injustice. However, as against that, the respondents, who are completely without fault in this matter, are hopelessly prejudiced in the conduct of their defence of this case. They can now produce no evidence to rebut any claims or assertions by the applicant. The potential injustice to them, in the circumstances of this case, is even greater.

  12. The Tribunal does not consider it appropriate in this case to extend the time appointed for the bringing of an application to review its earlier decision. As is clear from our decision, had we so extended the time, we would have refused to grant a review having considered the merits of the application.

    13. The decision of the tribunal, dated 23 October 1998, dismissing the applicant's claim is therefore confirmed.
    ____________________________________
    Date and place of hearing: 2 August 2002, Belfast
    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIFET/2002/297_98.html