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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCafferty v Department of Finance & Person... [2008] NIIT 1611_07IT_2 (28 July 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/1611_07IT_2.html Cite as: [2008] NIIT 1611_7IT_2, [2008] NIIT 1611_07IT_2

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1611/07

CLAIMANT: Elayne Mc McCafferty

RESPONDENT: Department Of Finance & Personnel

DECISION ON AN APPLICATION TO REVIEW

The unanimous decision of the tribunal is that its decision dated 9 May 2008 in this case is confirmed.

Constitution of Tribunal:

Chairman: Mrs Watson

Members: Mr McKnight

Mr Hunter

Appearances:

The claimant was represented by Mr Reid, Solicitor, of Kelly & Corr, Solicitors.

The respondent was represented by Mr Potter, Barrister-at-Law, instructed by The Departmental Solicitor's Office.

1. The decision in this case that the claimant had not been unfairly dismissed contrary to Article 130A of the Employments Rights (Northern Ireland) Order 1996 (as amended) was issued to the parties on 9 May 2008. At the hearing of this case, the claimant had been represented by her Trade Union representative, Mr Noel O'Neill who wrote to the tribunal on 22 May 2008 seeking a review of that decision. A letter from the claimant to the chairman of the tribunal was included.
2. The application for review was pursuant to Rule 34(3)(e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, that the interests of justice required such a review. Both Mr O'Neill and the claimant represented in their letters that the tribunal had arrived at its decision as a result of a mistake or misunderstanding of a material element of the evidence.
3. The tribunal was aware that finality of decisions is also in the interests of justice but in exercise of the Overriding Objective to deal justly between the parties, agreed to a hearing of the review application.

SUBMISSIONS OF THE CLAIMANT

4. At the review hearing, the claimant was represented by Mr Reid, her solicitor who had not been present previously but the tribunal was assured that Mr O'Neill had informed Mr Reid what had taken place at the hearing and the claimant was also present to instruct him.
5. On behalf of the claimant, Mr Reid submitted that the tribunal had misunderstood the reason for and the nature of the meetings between the claimant and Mr Murphy, a Welfare Officer employed by the respondent. This misunderstanding had 'permeated' the tribunal's thinking and decision and resulted in what the claimant considered was an incorrect outcome.
6. In addition, Mr Reid argued that the tribunal's decision was defective and not in keeping with the requirements of Rule 30 of the 2005 Rules in that it did not detail "issues which were not determined, what those issues were and why they were not determined". At paragraph 5(x) of the decision, the tribunal had noted that it "was satisfied that the respondent's decision to dismiss the claimant was reasonable and fair in all the circumstances of this case." Mr Reid submitted that this indicated that the tribunal had considered the requirements of 'ordinary unfair dismissal' but in its decision, the tribunal had not said so as required by Rule 30.

SUBMISSIONS OF THE RESPONDENT

7. The respondent's representative, Mr Potter, reminded the tribunal that the claimant had chosen not to give oral evidence at the hearing of her case. As a result, the respondent was denied the opportunity to cross examine the claimant. Because of this failure to give her version of events at the proper time, Mr Potter had intended to object to the review hearing and seek costs on the basis that the claimant had not made her presentation of events at the proper time and place. He did not do so in recognition of the tribunal's exercise of its discretion under Regulation 3 of the 2005 Regulations.
8. Mr Potter also reminded the tribunal that the parties had agreed that the only issue for its determination was whether or not the respondent had failed to honour its statutory obligations under the dispute resolution procedures.

REASONS FOR CONFIRMATION OF DECISION.

9. It was clear to the tribunal that any misunderstanding in relation to the evidential basis of the tribunal's decision was on the part of the claimant and her representative, Mr O'Neill. In her oral evidence to the tribunal, Mrs Morgan, from the respondent's Managing Absence Team, had provided a handwritten note of a telephone conversation she had with Mrs Frazer, the respondent's Employee Support Officer, to the effect that the claimant refused to meet with her in order to address the claimant's work related problems and would only meet with Mr Murphy.
10. In addition, the claimant had twice failed to return documentation provided by the respondent requesting information regarding her work problems in order to seek to resolve them. When she too subsequently spoke to the claimant, Mrs Morgan again asked her to meet with her managers in an attempt to resolve her difficulties. The claimant said she 'could not be bothered'. This evidence was not challenged at the hearing.
11. The claimant, at the review hearing, stated that she was not the subject of a Written Warning during the period of her absence. This is not correct. At paragraph 39 (v) of the decision, the tribunal noted that the claimant had been informed on 27 June 2006 that she had been issued with a written warning which would remain on her file for two years during which time her attendance would be monitored. She was also aware that her attendance had in fact been monitored since 2000. In her letter to the chairman of the tribunal, the claimant noted that during this time she had been absent for 853 days.
12. The decision also records the several occasions during the claimant's absence when the respondent wrote to her to advise her that dismissal was a potential consequence of continued absence and failure to engage with management. At the several meetings she had with Mr Murphy, he repeated that advice as well as informing her that her work problems would be addressed on her return. The tribunal was aware that the claimant would have known about such possible arrangements as her return from an earlier prolonged absence had been similarly managed.
13. Mr O'Neill and Mr Reid both submitted that they were unsure as to the exact reason for the dismissal of the claimant. The letters from the respondent were, in the view of the tribunal, quite clearly in accordance with the provisions of the respondent's Inefficiency Procedures as stated in their correspondence.
14. With regard to the Statutory Dispute Procedures, the tribunal was referred to a bundle of relevant authorities by the respondent. These were considered along with other authorities and the relevant statutory provision detailed in Section 4 of the decision on page 5.
15. The tribunal, at the review hearing, considered the material referred to in the decision of the substantive hearing and the submissions made at the review. It was still of the view that the procedure adopted by the respondents could not be described as rudimentary. As set out at paragraph 5 of the decision, the tribunal had followed the guidance of Mr Justice Underhill and concluded that the respondent's had gone further that the minimum standards provided for in the Statute.
16. The tribunal has already referred to the Overriding Objective of acting justly between the parties. In considering the actions of the respondent in this case, the tribunal took into account that, as well as being required to consider the needs of the claimant, the respondent had also to consider that in her absence, the claimant's colleagues, for whom the respondent also had responsibility, would have to cover her duties as well as their own. In all the circumstances of this case, the tribunal was of the view that the respondent had complied with their obligations under the statutory provisions in that they made her aware of the element of her behaviour to which they objected, told her the steps she needed to take to rectify that deficiency, took on board her concerns and sought to address them while informing her of the consequence of her continued absence. The claimant failed to recognise the opportunities she was offered to avoid her threatened dismissal following which she was given an appeal at which she had representation.
17. As noted in the decision, the tribunal followed the guidance of the Employment Appeal Tribunal in the case of YMCA Training V Mrs A.A. Stewart [2006] UKEAT and focused on 'whether the substantive requirements of the statute… were or were not met.' As stated above, the tribunal found they were.
18. The tribunal also took into account that the dispute resolution provisions require both sides in the dispute to make an effort to implement its requirements. In this regard, Mr O'Neill had informed the tribunal that if the claimant had known that the meetings with Mr Murphy could have been regarded as Stage 1 meetings, she would not have taken part. Since this was the only concession she made to her obligations under the procedures, the tribunal had found that the respondent had little option but to take the approach it did.
19. At paragraph 5(x), the decision noted that the tribunal were satisfied that the decision to dismiss was 'reasonable and fair in all the circumstances'. This was not a determination. Both parties had agreed that the tribunal was only being asked to make a determination with regard to compliance with the dispute resolution procedures and that is what it did whilst bearing in mind the need to ensure justice between the parties.

Chairman:

Date and place of hearing: 2 July 2008, Belfast

Date decision recorded in register and issued to parties: