THE INDUSTRIAL TRIBUNALS

CASE REF:	1637/05

CLAIMANT:			Micheal MacSimoin

RESPONDENT:		Cairde

DECISION ON A REVIEW APPLICATION
The unanimous decision of the tribunal is that the claimant’s application for review be dismissed for the reasons set out within the body of the decision.

Constitution of Tribunal:
Chairman:		Ms Crooke
Members:		Mr McParland
			Mr Lindsay

Appearances:
The claimant was represented by Mr J Bowers, of Belfast Unemployed Centre.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

1.	It was not possible to hold a preliminary consideration of the application for review in accordance with Rule 35(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 because although the grounds upon which the application was made were stated, no particulars were given.  Accordingly, it was not possible to make a decision on whether or not there was any reasonable prospect of the decision being varied or revoked without the matter being put to the full tribunal.  This decision was taken in accordance with Rule 3(a) and (c) [the overriding objective of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005].

2.	Mr Bowers made a number of criticisms of the findings of fact which he accepted were based on his notes of the evidence.  Concisely put the criticisms were as follows:-

(a)	The evidence of the two Mr MacAindreasas was not the same.

(b)	Mrs Ghee did not say that the book in which the claimant recorded his incomings and outgoings for the bus did not tally.

(c)	There was a differing account given between Mr Seamus MacAindreasa and Mr Conaill O’Cushnahan about whether or not it was known by each member of the committee that the bus was used for other organisations.  He said that Mr MacAindreasa’s evidence was that he did not know and that Mr O’Cushnahan’s evidence was that he did know.  

(d)	Mr Bowers also indicated that the evidence of Maire E Carolan which was that the claimant was upset when he came into her room to get the red book (during the disciplinary meeting) contradicted the concept that he gave the committee the impression that he was not in any way concerned about what was being said to him or that he had acted flippantly in response to what was being said.

(e)	Mr Bowers contended that there had been a misinterpretation by the tribunal of the application of the case of BHS  v  Burchell [1978] IRLR 379 and the case of Polkey  v  AE Dayton Services Limited [1987] 1 All ER 984.

3.	In response, Mr Hamill contended that the tribunal did not have a boundless discretion when considering the interests of justice.  He said that this was certainly not a case of procedural mishap or a case in which the tribunal’s decision had been undermined by events occurring shortly thereafter.  He contended that there was no misunderstanding of the law.  

4.	Although the application, as made, did not identify any particulars that would have brought the application within the procedural mishap ground, in accordance with the general ground of the interests of justice requiring a review, the tribunal considered the criticisms of the findings of fact made by Mr Bowers.  Having checked the notes of the panel, the tribunal saw no grounds for concluding that the evidence of Mr Sean MacAindreasa and Mr Seamus MacAindreasa was not the same.  In all major points at issue, the evidence of the father and son largely corroborated each other.  

The tribunal had a record of Mrs Ghee saying that the book did not tally.  

5.	The tribunal accepted that the evidence of Mr Seamus MacAindreasa and the evidence of Mr Conaill O’Cushnahan diverged on the question of knowledge of the bus being used for other organisations.  However, in analysing the evidence, the tribunal has already had regard to this difference in that it found that the evidence of the respondent’s witnesses largely corroborated each other.  Of itself, one difference in evidence of which the tribunal was aware, does not of itself constitute a sufficient ground for varying the decision on the basis that the interests of justice require it.  

6.	In accepting that the evidence of Angela McStravick and Teresa Deakin was honest, Mr Bowers considered that weight should have been given to their evidence that the bus was not there some of the time during which the claimant was on holiday.  Who allegedly drove the bus and where it went to is a point of so little probative value that it is insufficient to require the tribunal to make any variation of the decision, and in fact this was why it did not figure in the decision of the tribunal.

7.	Mr Bowers considered that the tribunal should have given weight to Maire E Carolan’s evidence that when Mr MacSimoin went into her room to get the red book he was upset and that this contradicted the concept that he was not concerned or flippant before the disciplinary panel.  The tribunal considers that the facts that Mr MacSimoin might have presented as being upset while outside the room in which the disciplinary meeting took place, is not sufficient to upset the conclusions based on the evidence before the tribunal that his behaviour before the disciplinary panel was unconcerned and flippant. 

8.	Mr Bowers contended that if the tribunal considered all these points made, it should lead to a reassessment of the percentage contribution reduction from the compensation made by the tribunal.  Having ruled, as set out in the above paragraphs of this decision, the tribunal consequently decides that the issue of a review of the 50% contribution (insofar as it was a proper question for review) does not arise.

9.	Finally, Mr Bowers contended that the tribunal has misapplied the authorities of Burchell and Polkey.  The tribunal does not consider that this is a suitable question for a review and consequently the claimant’s application for a review fails and is hereby dismissed.

Chairman:

Date and place of hearing:	3 August 2007, Belfast

Date decision recorded in register and issued to parties: