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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McMillan v Tullymore House Ltd [2005] NIIT 9410_03 (9 February 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/9410_03.html Cite as: [2005] NIIT 9410_3, [2005] NIIT 9410_03

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THE INDUSTRIAL TRIBUNALS

Case Ref No: 9410/03

APPLICANT: Donald Thomas McMillan

RESPONDENT: Tullymore House Ltd

DECISION ON REVIEW

On Review, the tribunal confirms its decision as promulgated on 22 October 2004, and thus dismisses the respondent's application for a review. At the request of the parties, the tribunal now records that the respondent has agreed to pay the applicant's legal costs incurred on 9 February 2005.

Appearances:

The applicant was represented by Mr D Sharpe of Counsel, instructed by L Cubitt & Co., Solicitors.

The respondent was represented by Mr M McEvoy of Counsel, instructed by Mills Selig, Solicitors.

SUMMARY REASONS

1. The decision of the industrial tribunal in this case was promulgated to the parties on 22 October 2004. The unanimous decision of the tribunal is that the applicant was constructively dismissed on 2 September 2003, and the tribunal ordered the respondent to compensate the applicant in the amount of £6,345.26. The tribunal determined the respondent conducted the proceedings before it in an unreasonable manner which violated the tribunal's overriding objective. Accordingly, the tribunal further ordered the respondent to pay £750.00 of the applicant's costs.
2. By an undated letter, Nicholas Hill for the respondent sent to the applicant's solicitor a request for a review of the tribunal's decision. In this letter Mr Hill stated:

"… My reasons for this are as follows, I only received one letter ever from your office being the notice of hearing which I include a copy of.

When I received this letter I read it and decided to put forward an application for a witness order. However through my discussions with your office I learned that the court was adjourned and thus I decided to do nothing until I received the next notice of hearing. I never received the next notice and only found out about the event through the recent letter from L. Cubitt & Co.

The problem I feel is that I did not receive all the correspondence from D T Carson & Co, accountants, who are registered as my company office. They are no longer my accountants and my solicitor changed the company office address. I felt this was enough to do as it would be impossible to write to every debtor, creditor etc etc who ever did business with Tullymore House Ltd. I wish to appeal this decision of the tribunal and request my right to defend the claim. I was not aware of the court date on 10 September otherwise I could have had my representative there …"

3. By a letter from L Cubitt & Co, dated 22 October 2004, the applicant's solicitors replied to Mr Hill as follows:-

"We refer to your letter which is undated which was received in our office on 21 October.

We note the various comments you had made and in response we would make the following comments:

1. If you wish the matter to be reviewed you should notify the Industrial Tribunal.

2. You make the point that your registered office was changed. Having checked with the Companies Registry we were informed that the change was effected on 14 September 2004 by your accountants McClure Watters.

3. You telephoned the writer prior to the hearing which was adjourned and at that time you had indicated that you were prepared to discuss the matter.

4. Indeed we have been informed by Miss Black of the Labour Relations Agency that you had been in contact with them on a number of occasions to discuss figures with regard to settlement of the claim.

5. You were well aware of the fact there was a claim proceeding and it would have been a simple matter for you to have instructed your accountants or and your solicitors.

6. We should make it clear that we at all times were prepared to enter into negotiations but it was your failure on your part which resulted in the matter going to tribunal …"

4. On 26 November 2004, the Office of the Industrial Tribunals and Fair Employment Tribunal received a letter from Mills Selig, Solicitors, for the respondent. This correspondence stated:-

"… we enclose a copy letter our clients mistakenly sent to L. Cubitt & Co asking to appeal the decision of the Tribunal of the 22 October 2004. This letter is undated but we understand it was sent in and around the 25 October 2004. Our client's intention to Review the decision is clear from the contents of this letter.

The Applicant's solicitors have clearly had notice of the Respondent's intention to Review the decision since the letter was in fact sent to them in error. They are aware of the Respondent's wish to have the matter Reviewed.

We would be grateful if the Tribunal would consider the enclosed letter as a notice of the Respondent's intention for a Review despite the fact that it has reached the Tribunal outside the 14-day time limit …"

5. The matter was listed for a hearing on Review before the Tribunal on 9 February 2005.
6. On foot of the review hearing on 9 February 2005, pursuant to Rule 13(7) of Schedule 1 to the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004, the tribunal confirms its decision as promulgated on 22 October 2004, and thus dismisses the respondent's application for a review.
7. At the request of the parties, the tribunal now records that the respondent has agreed to pay to the applicant the following amount in addition to the amounts awarded by the tribunal by its confirmed decision of 22 October 2004:

The respondent to pay the applicant £500.00 + VAT = £587.50 in respect of the applicant's costs on foot of the review hearing on 9 February 2005. This amount to be paid to the applicant on 9 February 2004.

Chairman:

Date and Place of Hearing: 9 February 2005, Belfast

Date decision issued to parties: