THE INDUSTRIAL TRIBUNALS

CASE REF:    1070/10IT

CLAIMANT: 	Anupam Raj

RESPONDENT: 	Midhill Ltd Trading As Subway Botanic

DECISION ON AN APPLICATION FOR REVIEW

In exercise of the power conferred on me by Rule 35(3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, I refuse the application for a review of the decision of the tribunal promulgated on 13 January 2011 on the grounds that it has no reasonable prospect of the decision being varied or revoked.

Constitution of Tribunal:

Chairman (Sitting alone):	Ms Julie Knight

Reasons

1.	The Hearing of the claimant’s originating claim took place from 1-5 November 2010 and 15 November 2010.  The tribunal promulgated its decision on 13 January 2011 and unanimously held that it did not have jurisdiction to entertain the claimant’s complaints of unfair constructive dismissal and sex discrimination because he had not complied with the statutory grievance procedure in relation to these complaints; and that the claimant was not subjected to unlawful racial discrimination.

2.	The claimant sought a review of the decision by email to the tribunal dated 27 January 2011 attaching written statements of Suratha Meher, Yasser Matloob, Rimante Pribususauskaite and David Monteith, together with email exchanges between the claimant and Maria Creaney and Jauma Padilla and a letter of support from Janja Mikulan.  All of these documents predate the dates of the Hearing of the claimant’s complaints to the tribunal.

3.	The claimant’s ground for review appears to be that  the interests of justice require the decision to be reviewed on the basis that the tribunal made various findings of fact which are unsupported by evidence and that the tribunal took into account irrelevant considerations, ignored relevant evidence and reached incorrect conclusions in relation to the following matters :

a.	in finding that the claimant in his email of 5 November 2009 to Mr Fitzgerald did not notify the respondent of his intention to resign from his employment and in concluding that it did not have jurisdiction to deal with his complaint of unfair constructive dismissal,
b.	
in finding as a fact that Pinay’s son Jeric was employed in May 2009 and not 31 March 2009 and in allegedly finding that he was a student,

c.	in its findings and conclusions concerning an argument  the claimant’s working relationships with Mr Meher and Ms Xueting;

d.	in the manner in which the tribunal approached the allocation of hours to the claimant in view of his submission to the tribunal that he did not wish to include the period prior to 10 February 2009 in this aspect of his complaint,

e.	in its findings and conclusions concerning the allocation of hours to the claimant and his colleagues after 10 February 2009 and in particular upon his return from India in May 2009;

f.	in its conclusions from facts found in relation to the events surrounding him taking leave to visit his sick grandmother in India and in the timing of the employment of Charmaine in Subway Botanic

g.	in its conclusions from its finding of fact that Mrs Baxter gave him a favourable reference for Teletech;

h.	in its conclusions from the facts found in relation to the request to the claimant to clean the toilets;

i.	in the alleged conclusion in paragraph 28 that the claimant was “happy with his hours” prior to going to India in May 2009.

j.	that it ignored or did not give proper consideration to or make correct findings of facts or draw proper conclusions from the oral evidence of Mr Meher, Mr Matloob or Ms Pribusauskaite;

k.	that it ignored evidence and failed to make findings of fact concerning the claimant’s allegations as to why local people left their jobs or were sacked by Mrs Baxter  and why no local people were employed by Mrs Baxter in Subway Botanic and Finaghy stores after Mrs Baxter became manager;

l.	that it failed to give proper consideration to or make correct findings of facts or draw proper conclusions from the evidence of Mr Fitzgerald concerning his investigation of the claimant’s grievance against Mrs Baxter and a reference made by him to Autogrill;

and further, that the tribunal failed properly to apply the provisions of Article 33 of the Employment Rights (NI) Order 1996 and Article 27 of the Employment (NI) Order 2003.

4.	The claimant further requests that the tribunal, in carrying out a review of its decision, and in the interests of justice, should take into consideration the statements, emails and letter of support appended to his application for a review. In the words of the claimant, “these documents I failed to produce because oral evidence was instructed by the tribunal”.

5.	
Rule 34 (3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Rules”) makes provision for the review of decisions on five specific grounds. The claimant relies upon the following grounds:

(d)	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 that time; or

(e)	The interests of justice require such a review.

The two grounds are not mutually exclusive but in order for a case to succeed under paragraph (e) where a review has been refused under paragraph (d) there must be “some special additional circumstance” or “some mitigating factor” to lead to the conclusion that justice does in fact require a review.  (Per Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277).  In that particular case it was held that the application to review did not fall within paragraph (d) because the evidence sought to be adduced in support of the application had been within the knowledge of the employee at the time of the original hearing and was not introduced at that stage.  It was held that neither did the application fall within paragraph (e) because the decisions of Industrial Tribunals should, in the interests of justice and the general public, be as final as possible and only in unusual circumstances, which were not present in that case, should the parties be allowed to invoke that paragraph.

Rule 34 (3)(e) confers a wide discretion on Industrial Tribunals which must be exercised judicially and with regard, not just to the interests of the party seeking the review, but also the interests of the other party and to the public interest requirement that there should, as far as possible, be finality of litigation.  Tribunals must seek to give effect to the overriding objective of dealing with cases justly when exercising their discretion which requires the application of recognised principles to the particular circumstances of the case. 

6.	Having carefully considered the claimant’s application for a review, I decide as follows:

a.	The further documentation attached to the claimant’s application for review does not constitute new evidence within the meaning of Rule 34(3)(d).  All of the documents were in existence at the time of the hearing and the claimant does not purport that the documentation now furnished by him is new. As such I determine that there is no reasonable prospect of the decision being varied or revoked under Rule 34 (3)(d). 

b.	However, I went on to consider whether in the light of this documentation, there are any circumstances which require a review of the decision in the interests of justice.  The claimant’s application to adduce unspecified written witness statements was refused by the tribunal at the Hearing because this could lead to unfairness to the respondent which would not have an opportunity to cross examine absent witnesses. Mr Meher, Mr Matloob and Ms Pribusauskaite did actually attend and gave evidence on behalf of the claimant which was taken into consideration by the tribunal, together with other evidence, in reaching its decision.  The tribunal made it clear to the claimant at the Hearing that he was at liberty to call any other witness who could give relevant oral evidence. 

c.	I have carefully considered the matters relied upon by the claimant.  My view is that they appear to allege that the tribunal’s decision was perverse and as such was one that no reasonable tribunal properly addressing itself properly on the law could come to.  Whereas I understand that the claimant is disappointed with some of the findings and the conclusions of the tribunal, I do not consider that the other matters raised by the claimant concern any issues which the claimant did not raise or could not have raised at the hearing. As such I consider that these matters do not come within the meaning of Rule 34 (3) (e) and I am further satisfied that the tribunal has properly applied the provisions of Article 33 of the Employment Rights (NI) Order 1996 and Article 27 of the Employment (NI) Order 2003. Therefore if the claimant wishes to challenge the tribunal’s decision on these bases, the proper course would be for him to appeal to the Court of Appeal on a point of law.  Guidance issued by the Office of the Industrial Tribunals and the Fair Employment Tribunal on the appeals procedure is appended to this decision which is also displayed online.

I am satisfied that it is not appropriate to review the decision of the Tribunal as in my view it has no reasonable prospect of success under either Rule 34(3)(d) or (e) and that there is no reasonable prospect of the decision being varied or revoked.

Chairman:

Date Issued to the Parties: