Cloete v Road Sea Express Ltd  (Application for Review)  (15 October 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	2642/01

APPLICANT:	Ian Cloete

RESPONDENT:	Road Sea Express Limited 

DECISION ON APPLICATION FOR REVIEW
In exercise of the power conferred on me by Rule 11(5) of the Rules of Procedure set out in the First Schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 1996, I refuse the application by the applicant for a review under Rule 11(1), on the grounds that it has no reasonable prospect of success.
Reasons
1.	In the tribunal’s decision as promulgated on 23 September 2002, the tribunal unanimously held that the applicant had not been unfairly nor constructively dismissed by the respondent and dismissed the applicant’s complaint.  A letter (undated) was received by the Office of Tribunals on 7 October 2002 from the applicant.  In that letter, the applicant sets out a number of contentions upon which he seeks to have reviewed the decision of the tribunal in this matter.  Below, are set out in turn the applicant’s contentions and these contentions are dealt with individually. 

2.	In his said letter the applicant does not specifically set out the statutory grounds upon which he seeks to have reviewed the tribunal’s decision.  I therefore consider that the grounds upon which the review is sought are most probably those contained in Rule 11(1)(e) of the said Rules of Procedure, which Rule provides that a tribunal may review a decision on the grounds that the interests of justice require such a review. 

3.	I have also considered the possibility that the applicant might additionally seek to have reviewed the tribunal’s decision on foot of Rule 11(1)(d) of the said Rules of Procedure, which rule provides that a tribunal may review a decision on the grounds that 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 the time of the hearing.  However, although the applicant in his said letter has alluded to several matters in respect of which no evidence or argument was brought before the tribunal at the hearing, the applicant has not further in his said letter expressly addressed or put forward any case based upon the statutory grounds contained in Rule 11(1)(d).  For that reason, I intend to carry out this review addressing the grounds contained in Rule 11(1)(e) alone, as I believe that such statutory grounds for review best fit the matters raised in the applicant’s said letter which requests this review.

4.	The matters raised by the applicant in his said letter were as follows:- 

           (a)	Paragraph 4 of the decision states that Mr Lee had been advised that all vehicles must be parked in the Carrickfergus depot overnight, so as to adhere to the appropriate regulations and specific terms of the operating licences.  There was evidence before the tribunal that this was not enforced and was broken on many occasions after 4 June 2001 (the date of the applicant’s employment by the respondent coming to an end) 

The tribunal’s decision at Paragraph 4 recites what, as a matter of fact, was stated in the respondent’s letter of 31 May 2001.  The tribunal heard the further evidence in the matter.  The applicant’s apparent contention in support of the review application upon this point puts forward the proposition that there was evidence that this stated policy of the respondent was not enforced and was broken on many occasions after 4 June 2001.  It seems that the applicant wishes the tribunal to consider the situation after 4 June 2001 only.  The tribunal did hear evidence in regard to the arrangements pertaining to vehicles operating under the international operating licence and specific arrangements relating to situations where it was not possible for vehicles to return safely or at all to the Carrickfergus depot overnight.  I do not believe that that evidence impacts upon the tribunal’s view in the matter, as the applicant’s vehicle usage and operating situation does not fall into the same category.  The tribunal was also primarily concerned with the operating procedures which the respondent’s management felt necessary to dictate, for apparently good cause, at the time the applicant’s employment came to an end. 

           (b)	At the meeting between Mr Lee and myself I made him fully aware of the difficulties facing me with the extra hours on my working day. 

       	The tribunal’s decision refers to the conflict in evidence as to what occurred at the meeting of 1 June 2001.  The tribunal found, as a matter of fact, that the applicant did not raise with the respondent’s management anything which might be taken as constituting, or which could be understood to be, a grievance complaint as to the change in overnight parking arrangements.  However, the tribunal’s decision does go on to state that the respondent’s management understood that the change would pose considerable difficulties for the applicant. 

(c)	As far as the company having shown flexibility on a previous problem this was more in the company’s interest (alleged reason stated).

The tribunal’s decision mentions that, significantly, on one previous occasion the respondent company had shown flexibility and had been prepared to negotiate with the applicant in connection with a previous difficulty in working and payment arrangements.  The tribunal found, as a matter of fact, that the respondent company had shown, on a past occasion, a propensity to discuss problems with the applicant and to achieve a negotiated settlement.  Implied in that finding was the suggestion that there was no evidence before the tribunal that the respondent would adopt a different approach to the resolution of the situation then facing it, especially bearing in mind the tribunal’s next observation that the tribunal noted the facts that the respondent regarded the applicant as being a valuable and an entirely satisfactory employee; such persons were in very short supply as far as the respondent was concerned; the respondent would ordinarily have wished to engage in any reasonable effort in an endeavour to retain such an employee as the applicant; and the company had no advantage in the applicant leaving employment. 

(d)	Of note to the tribunal is the fact that... (then follows a reference to the alleged level of working hours and alleged failure on the respondent’s part to provide paid holiday leave).

I am unable to address these allegations or complaints as neither did these form part of the applicant’s complaint before the tribunal nor were they addressed in the tribunal’s decision. 

(e)	In paragraph 5 the tribunal accepted that Mr Campbell’s impression of our conversation was that I was prepared to work on until I had secured alternative employment.  The facts are that in their written reply to the tribunal I told Mr Campbell on the Saturday morning I would not be back, a fact confirmed at the hearing.

The tribunal found, as a matter of fact, and based upon the evidence in the matter, including particularly Mr Campbell’s oral testimony to the tribunal, that Mr Campbell’s impression from this conversation was that the applicant might possibly have indicated an intention to leave in due course, once he had secured alternative employment, and that Mr Campbell fully expected the applicant to report to work again on the next working day, Monday, 4 June 2001.  The tribunal had to consider and to take account of the weight of that evidence together with the content of the respondent’s Notice of Appearance, and weighing these together, formed the conclusion that it did upon the facts. 

(f) 	I received my final wage on Thursday 7 June which was made up on Monday 4 June which suggests that the company knew I would not be returning to work.

           Neither any evidence nor any argument in regard to that point were placed before the tribunal for its consideration and accordingly I am unable to consider that contention as a ground for review. 

(g) 	When a driver has left or been dismissed from the company they have been replaced by a sub-contractor who now make up at least 80% of the company drivers.

Again, neither any evidence nor any argument in regard to that point were placed before the tribunal for its consideration and accordingly I am unable to consider that contention as a ground for review.

5.	Taking into account all of these matters, I am of the opinion that the application for review under Rule 11(1)(e), which Rule provides that a tribunal may review a decision on the grounds that the interests of justice require such a review, has no reasonable prospect of success and accordingly, there being no other grounds of review made out by the applicant, under Rule 11(5) I refuse the application for review.   

Chairman:

Date: