THE INDUSTRIAL TRIBUNALS

CASE REF:	2355/06

CLAIMANT:			Kyle Courtney

RESPONDENT:		RJH Haulage Ltd operating as Initial City Link

Constitution of Tribunal:

Chairman:			Ms Bell

Members:			Mr McIlwaine
				Mr McAnoy

Appearances:
The claimant appeared and represented himself.
Mr Howard Wilson general manager of the respondent company appeared for and represented it. 

DECISION ON APPLICATION FOR A REVIEW

The unanimous decision of the tribunal is that the application for a review on the ground that the decision was made in the absence of a party is refused, there being no reasonable prospect of the decision being varied or revoked, and the original decision sent to the parties on 27 April 2007 stands.

 1.	The tribunal issued a decision to the parties on 27 April 2007 following the hearing of the case on Wednesday 28 February 2007 at which there was no appearance by the respondent.

 2.	A letter was sent to the tribunal by Mr Howard Wilson on 1 March 2007 apologising for his absence at the hearing on Wednesday 28 February 2007 as he had injured his back on the Tuesday evening before and was unable to move until Thursday 1 March 2007, he asked the tribunal to accept his sincerest apologies.

3.	A further letter was sent to the tribunal by Mr Howard Wilson on 1 May 2007 making application for a review of the tribunal’s decision on the grounds that the decision was made in the absence of a party.  Mr Wilson stated that he believed that had he been able to attend he would have provided information that would have affected the outcome.

4.	At the hearing of the review application Mr Wilson gave evidence that after working out at the gym on Tuesday 27 February 2007, he bent over to pick up his gym bag and injured his back, he stated that he could not move and had to lie on his back for 48 hours as a result of which he was off work for the first time in number of years and did not return to work until the Friday of that week.

5.	Mr Wilson stated that he did not attend the doctor following his back injury but that he visited a physiotherapist the following week.  No independent corroborative evidence was provided by Mr Wilson in respect of his back injury.

6.	Mr Wilson submitted that he was the only person capable of attending and dealing with the hearing on behalf of the respondent, save for Janette Dickson the financial director.  He stated that the respondent company has two directors, Janette Dickson and her father, who is retired.  Mr Wilson stated that he contacted Janette Dickson around 9.00am on Wednesday 28 February 2007 but at that stage it was impossible to get her to the tribunal before 10.00am.

7.	The claimant gave evidence that on the morning of the hearing on 28 February 2007 he telephoned a driver who is still employed by the respondent to ask if Mr Wilson had left work yet to come to the tribunal, but that the driver informed him that Mr Wilson was standing right in front of him, the driver was not identified and no corroborative evidence was provided.

8.	Mr Wilson submitted that the tribunal’s decision was wrong in that;

•	it did not take into account numerous attempts on behalf of the respondent company after the claimant’s dismissal to contact him to try to reconcile matters.

•	the respondent company holds records that show that calls were made from the claimant’s mobile phone after it was allegedly switched off following the claimant’s calls to Terry Dineen on 10 July 2006.

•	it stated that he was the managing director of the respondent company whereas he is the general manager.  

•	following speaking with the claimant on 24 July 2006, after the claimant’s dismissal, he had asked the claimant to call him back because of difficulty experienced in contacting him by telephone, rather than arranging to call the claimant back.

•	he had no record of the claimant’s letter of 1 August 2006 having been received.

9.	The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 Rule 34 (3) (c) provides that the party against whom the decision is made may apply to have the decision reviewed on the ground that the decision was made in the absence of the party.  Rule 35 (1) provides that the Chairman of the tribunal which made the decision shall refuse the application if he considers that there are no grounds for the decision to be reviewed under Rule 34 (3) or there is no reasonable prospect of the decision being varied or revoked.

Leaving aside whether the tribunal are satisfied that the respondent has shown good cause for absence at the hearing and a ground for the decision to be reviewed under Rule 34 (3), the tribunal is of the unanimous view on the basis of Mr Wilson’s evidence and submissions that there is no reasonable prospect of the tribunal’s decision being varied or revoked.  The respondent has not raised any relevant issue in respect of the substantive findings of fact upon which the decision was based and which might lead the tribunal to vary or revoke it.  It remains that the respondent dismissed the claimant without fair reason or following statutory minimum dispute resolution procedures.  The claimant’s alleged subsequent numerous attempts after the claimants dismissal to contact him to try to reconcile matters would not change the tribunal’s application of the law to the facts found.  The tribunal considers that if evidence exists of telephone calls having been made on the claimant’s mobile following the claimant’s call to Terry Dineen on 10 July 2006 it would not prove that the telephone was otherwise left on between times , this, Mr Wilson being general manager as opposed to managing director and whether the arrangement was for the claimant to telephone Mr Wilson back after their call on 24 July 2006 or vice versa, the conversation having taken place after the dismissal of the claimant, has no bearing on the tribunal’s decision.

10.	The tribunal at paragraph 18 of its decision found that the claimant had sent a letter on 1 August 2006 to the respondent requiring written reasons for his dismissal, that no response was received and a copy of this letter was produced to the tribunal at hearing.  No dispute was raised by Mr Wilson in his submissions whether this letter was sent, just that he had no record of receipt of the letter.  The finding of the tribunal that the claimant did not receive a response to his request for written reasons remains.

11.	In all the circumstances of this application the tribunal is satisfied in respect of the respondent’s application under Rule 34 (3) (c) that there is no reasonable prospect of the decision being varied or revoked and the original decision of the tribunal promulgated to the parties on 27 April 2007 stands.

Chairman:

Date and place of hearing:	4 June 2007, Belfast.

Date issued to the parties: