FAIR EMPLOYMENT TRIBUNAL
CASE REF: 50/00FET
246/01FET
222/02FET
APPLICANT: Derek George Brown
RESPONDENTS: 1. Department of Agriculture – Rivers Agency
2. Department of Agriculture & Rural Development
DECISION
The decision of the Tribunal is that:-
(a) the withdrawal of a withdrawal of a complaint before dismissal by a tribunal leave the complaint to be determined by a tribunal; and
(b) the applications are nevertheless dismissed because the applicant, in withdrawing that withdrawal, acted vexatiously and unreasonably in his conduct of the proceedings.
Appearances:
The applicant was represented by Mr Tony McMullan of NIPSA.
The respondent was represented by Mr Francis O'Reilly, Barrister-at-Law, instructed by the Departmental Solicitor.
- The history of this matter is that the applicant made three applications against the Department which were listed on 22 October 2003 for hearing from 2-6 February 2004. By letter dated 28 October 2003 and received in the Office of Tribunals on 30 October 2003, David Stewart, the applicant's trade union representative informed the Secretary to the Tribunals that he had been instructed by the applicant to write to him to seek to withdraw three Fair Employment Tribunal cases namely 50/00, 246/01 and 220/02FET. On 4 November 2003 the applicant rang the Office of Tribunals advising that he did not wish to withdraw his application and stating that his NIPSA representative must have misunderstood him. He was advised to write which he did on 4 November 2003. On the same day the respondents consented to the applicant's withdrawal of his claims without seeking costs.
- By letter dated 25 November 2003 the respondents argued that in the absence of fraud or misconduct by the applicant's representative the withdrawal must have effect and the cases must be dismissed. The matter was then listed for a preliminary hearing on three issues, namely-
(a) Does the Fair Employment Tribunal have a discretion under Rule 13(2)(a) of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2004 to dismiss an application where –
(i) it was withdrawn by the applicant's representative; and
(ii) the withdrawal was subsequently withdrawn by the applicant himself before the tribunal made any order.
(b) If the Tribunal does have a discretion should it dismiss the application in the circumstances outlined and on the evidence adduced at the hearing?
(c) In the event that the Tribunal had such a discretion and exercises it in favour of the applicant to allow him to proceed, should the application nevertheless be struck out under Rule 13(2)(d) because of the manner in which the proceedings have been conducted by or on behalf of the applicant i.e. disruptive or otherwise unreasonably.
- Rule 13(2) of the aforesaid Rules states that a Tribunal may, if the applicant at any time gives notice of the withdrawal of his originating application, dismiss the proceedings. The wording of the Rule suggests two things to me, namely –
(1) that the Tribunal has a discretion whether or not to dismiss the application; and
(2) there is a need for a dismissal to bring the proceedings to a close.
There will, of course, be circumstances which may dictate how the tribunal exercises his discretion but it would be surprising, to say the least, if the facts that the withdrawal was received on 30 October and the withdrawal of the withdrawal was received within three working days of that date were not significantly relevant. It would be altogether different if a tribunal had dismissed following a withdrawal but I cannot accept that, in tribunal proceedings, and without any evidence of prejudice to the respondents a tribunal is precluded from continuing proceedings unless there is evidence of fraud or misconduct on the part of his representative. At this stage the scheduled hearing was three months away. Indeed the applicant's representative wrote 'seeking to withdraw' the applications and, before acceding to that request, the views of the respondents were sought. Before such consent was received the applicant had written withdrawing his withdrawal.
- Having considered the judgement of the Court of Appeal in Barber –v- Staffordshire County Council [1996] IRLR 209, I am concerned that the respondents seeks to show that the dismissal of a complaint on withdrawal is a mere administrative act rather than a judicial decision. And it seems to me that if an agreement to withdraw proceedings is void unless the conditions specified in Article 245 are complied with, then a unilateral withdrawal which is withdrawn before any judicial mind is applied should not compel dismissal.
- In these circumstances I believe that the Tribunal must have at least a discretion in the circumstances outlined. Indeed, it may well be that it does not have such a discretion in that it must follow that the proceedings must be allowed to continue. If a withdrawal is withdrawn, and there has not been a dismissal before it is withdrawn, the proceedings must be allowed to proceed unless they can be struck out as an abuse of the process.
- In my opinion a withdrawal does not end proceedings unless it is followed by a dismissal. In my opinion Barber –v- Staffordshire County Council shows that the principles of estoppel apply to a decision to dismiss following a withdrawal because such a dismissal is a judicial decision. A withdrawal without a judicial decision in itself does not end proceedings. It would, in my opinion, be contrary to principle to say, for instance, that whilst the completed act of dismissal could be subject to review, the (uncompleted) act of withdrawal was in itself final.
- We have considered the decision of the Tribunal in Brown –v- Department for Regional Development @ 2926/01 (unreported). In somewhat similar circumstances i.e. withdrawal on 11 September 2003 was withdrawn on Friday 12 September 2003, the tribunal concluded at paragraph 6-
(a) the power to dismiss appeared to be discretionary;
(b) the applicant's withdrawal was unequivocal and not made as a result of duress or misapprehension;
(c) as a result the respondent had stood down witnesses where the hearing commenced on Monday 15 September 2003 to run to 23 September 2003; and
(d) the applicant did not tell his own representative of his withdrawal of the withdrawal until 15 September.
- The tribunal in that case considered that the actions of the applicant in seeking to withdraw his withdrawal was tantamount to an abuse of the process and refused to reinstate the withdrawn complaints. It furthered considered that the applicant by his conduct had acted frivolously, vexatiously or otherwise unreasonably and ordered the applicant to pay the costs in relation to his attempt to reinstate the withdrawn complaints.
- For my part I do not consider that the withdrawn complaints in the case before me require reinstatement. I have given my reasons above. Since I believe that it would be wrong to dismiss under Rule 13(2)(a) of the 2004 Rules of Procedure, the claims are live claims. The remaining question is whether the applications in the circumstances before me should be dismissed under Rule 13(2)(d). This Rules states -
"A tribunal may –
(d) subject to para 3, at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, the respondent has been vexatious, abusive, disruptive or otherwise unreasonable.
- I do not consider that the prompt withdrawal of a withdrawal in itself falls within Rule 13(2)(d). We heard evidence from the applicant and from his former representative who withdrew his complaints. On balance of probabilities we believe that representative when he said that he discussed the applicant's case with him in the presence of his wife and daughter and addressed him in terms, namely
"Before I go, you want me to –
(a) go for ill-health retirement;
(b) withdraw the complaints to the Fair Employment tribunal, and
(c) go to the Ombudsman re maladministration by the respondent."
The applicant confirmed that this is what he wanted. And on balance of probability we believe that representative when he testified that on 4 November 2003 the applicant said to him that he had been speaking to a mate who suggested leaving the complaints lying to 'let the bastards sweat'. The applicant had repeated this to him and he replied that the applicant had withdrawn and this was not his (the representatives) way of operating.
- We prefer the evidence of that representative because Mr Brown in his own evidence agreed that if his evidence was true, the most likely explanation for the withdrawal by his representative was that he misconstrued the applicant's instructions. He was not suggesting animosity or underhand dealing of any sort. It is clearly not the most serious offence in the world for a representative to misconstrue what he is told by a client. And especially in the context of communications between a representative and a client, in the absence of animosity or underhand dealings, one would not expect a representative to lie to the detriment of that client rather than admit that instructions were misconstrued. In these circumstances I do believe that the applicant has been both vexatious and unreasonable in his conduct of these proceedings and I dismiss his complaints.
______________________________________
J E MAGUIRE
President
Date and place of hearing: 28 September 2004, Belfast
Date decision recorded in register and issued to parties:
