THE INDUSTRIAL TRIBUNALS
  
CASE REF:    2012/10

CLAIMANT:	Thomas Neville Orr

RESPONDENTS:	1.	Herdmans Limited
		2.	Herdmans Holdings Limited

DECISION ON REVIEW

The decision of the tribunal is that the application for a review is refused.

The Application for a Review

1.	The claimant seeks a review of a single aspect of the tribunal’s decision in this matter.  Unusually the claimant is not seeking to challenge the tribunal’s decision in any respect but rather seeks clarification of the tribunal’s ruling in respect of the tribunal’s finding that the claimant was an employee of the second respondent.  The application was prompted by the refusal of the Redundancy Payments Branch of the Department for Employment and Learning to make a payment to the claimant on the basis that it does not consider that the claimant falls within the definition of “employee” under Article 3 of the Employment Rights (Northern Ireland) Order 1996 and that it does not regard itself as bound by the tribunal’s decision as it was not a party to the proceedings.  The application is based on a single ground namely that it is in the interests of justice. 

History of Proceedings

2.	The claimant brought claims in respect of breach of contract, a redundancy payment, unauthorised deduction of wages and holiday pay in a claim form dated 19 August 2010 against Herdmans Limited and Herdmans Holdings Limited.  The respondents filed responses on 9 September 2010 in which it was stated that they did not intend to resist the claim.

3.	The case was listed for hearing on 16 December 2010 and heard evidence from the claimant.  The tribunal was also provided with a bundle of documents which included the claimant’s contract of employment, his pay slips and tax forms.  The tribunal also had to determine which of the two named respondents the correct respondent was and having considered the evidence and submissions carefully the tribunal determined that the claimant was employed by the second named respondent.  In relation to the substance of the claim the tribunal found in the claimant’s favour issued its decision on 10 February 2011.  The tribunal awarded the claimant £148,479.20 in respect of redundancy pay, notice pay, holiday pay and unlawful deduction of wages.  This was significantly smaller than the amount claimed mainly due to a claim in respect of bonus pay being out of time.

4.	The main focus of the hearing was on the claimant’s most recent terms and conditions of employment which were contained in a contract of employment with the second named respondent dated 22 December 1998.  The contract stated that the claimant was employed as “the Director”.  Elsewhere the claimant is described as “the Managing Director”.  Under the terms of the contract the claimant was paid an annual salary and was also eligible for a bonus payment.  The contract also stated that the second named respondent could terminate the agreement by paying the claimant his basic annual salary.  The business encountered financial difficulties and as a result the claimant was not always paid his full salary.  As a result the claimant corresponded with the second named respondent on 16 July 2010 and requested payment of his unpaid salary.  He also sought notice pay and a redundancy payment.  The claimant received a reply dated 20 July 2010 which stated that the second named respondent was not in a position to pay his unpaid salary or offer him continuing employment.  The letter went on to advise that the claimant’s role of Managing Director had effectively disappeared and that his post was redundant.

5.	The claimant’s claims succeeded in large measure and all of the awards were predicated on the claimant being an employee notwithstanding that the claimant’s job was that of Managing Director.

6.	The respondents sought a review of the tribunal’s decision based largely on the contention that the first named respondent was the correct respondent rather than the second named respondent.  There was no suggestion that the claimant was not an employee.  The application for a review was part heard on 16 May 2011 and was later withdrawn.

7.	Article 3 (1) of the Employment Rights (Northern Ireland) Order 1996 defines “employee” as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.”

8.	Review applications are dealt with at Rules 33 to 36 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Regulations”).  For the purposes of the present case Rules 34, 35 and 36 are germane.  These Rules provide as follows:

	34.	(1)	Parties may apply to have certain decisions made by a tribunal or a chairman reviewed under this rule, and rules 35 and 36.  Those decisions are –

			(a)	a decision not to accept a claim, response or counterclaim;

			(b)	a decision which is a final determination of the proceedings or a particular issue in those proceedings other than a default judgment but including an order for costs, allowances, preparation time or wasted costs; and

			(c)	a decision made under rule 5(3) of Schedule 5.

		(2)	In relation to a decision not to accept a claim or response, only the party against whom the decision is made may apply to have the decision reviewed.

		(3)	Subject to paragraph (4), decisions may be reviewed on the following grounds only –

			(a)	the decision was wrongly made as a result of an administrative error;

			(b)	a party did not receive notice of the proceedings leading to the decision;

			(c)	the decision was made in the absence of a party;

			(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.

		(4)	A decision not to accept a claim or response may only be reviewed on the grounds listed in paragraph (3)(a) and (e).

		(5)	A tribunal or chairman may on its or his own initiative review a decision made by it or him on the grounds listed in paragraph (3) or (4).

		(6)	In this rule, rules 35 and 36, “decision” means a decision mentioned in paragraph (1).

	35.—	(1)	An application under rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties.  The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.

		(2)	The application must be in writing and must identify the grounds of the application in accordance with rule 34(3), but if the decision to be reviewed was made at a hearing, an application may be made orally at that hearing.

		(3)	The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the tribunal which made the decision or, if that is not practicable, by –

			(a)	any chairman nominated by the President or the Vice-President; or

			(b)	the President or the Vice-President,

		and that person 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.

		(4)	If an application for a review is refused after such preliminary consideration the Secretary shall inform the party making the application in writing of the chairman’s decision and his reasons for it.  If the application for a review is not refused the decision shall be reviewed under rule 36.

	36.- 	(1)	Where a party has applied for a review and the application has not been refused after the preliminary consideration mentioned in rule 35, the decision shall be reviewed by the chairman or tribunal who made the original decision.  If that is not practicable a different chairman or tribunal (as the case may be) shall be appointed by the President or the Vice-President.

		(2)	Where no application has been made by a party and the decision is being reviewed on the initiative of the tribunal or chairman, the review must be carried out by the same tribunal or chairman who made the original decision and –

			(a)	a notice must be sent to each of the parties explaining in summary the grounds upon which it is proposed to review the decision and giving them an opportunity to give reasons why there should be no review; and

			(b)	such notice must be sent before the expiry of 14 days from the date on which the original decision was sent to the parties.

		(3)	A tribunal or chairman who reviews a decision under paragraph (1) or (2) may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing a new hearing must be held.

9.	The application for a review was dated 14 July 2011 and it was received in the tribunal office on 15 July 2011.  It is therefore substantially out of time.  However, in view of the history of these proceedings and the course of correspondence between the claimant’s solicitor and the Department if I considered it otherwise appropriate to grant the application for a review I would be disposed to extend time on the basis that it was just and equitable to do so.

Conclusion

10.	The claimant places emphasis on the overriding objective contained in Regulation 3 to deal with cases justly and the wide nature of Rule 34 (3) (e).  I accept that the tribunal is given a wide discretion by this provision and rigid categorisation of the types of cases that fall within this ground are to be avoided.  However, it is not without bounds and it is important to consider not just the interests of the party seeking the review but also the other party and the public interest in the finality of litigation.

11.	The claimant would wish the Department to participate in any review hearing and thus be bound by the tribunal’s decision on review.  There is no guarantee however that the Department would participate.  In any event this is not in my view an appropriate consideration in deciding whether or not to grant the application for a review.

12.	The application for a review boils down to the alleged need for clarification of the tribunal’s decision.  I consider that the tribunal’s decision is entirely clear and in particular the tribunal was satisfied that the claimant was an employee of the second named respondent. Were this not the case the tribunal would not have made the award in favour of the claimant that it did.  The problem for the claimant is not that the decision is unclear but rather that the Department does not agree with it.  Applying the Rule 35(3) test I am satisfied both that there are no grounds for reviewing the decision under rule 34(3) and there is no reasonable prospect of the decision being varied or revoked.  The application for a review is therefore refused.

Chairman:

Date decision recorded in register and issued to parties: