THE INDUSTRIAL TRIBUNALS

CASE REF:	1693/12

CLAIMANT:			Lorna Marie Donnelly

RESPONDENT:		De Paul Ireland

DECISION ON AN APPLICATION FOR A REVIEW
The decision of the tribunal is to confirm the decision to dismiss the claimant’s claim.

Constitution of Tribunal:
Chairman (sitting alone):		Mr S A Crothers

Appearances:
The claimant appeared in person and represented herself.
The respondent was represented by Ms L Bryson, Solicitor, of Carson McDowell LLP, Solicitors.

Background

1.	The claimant’s representative, Brenda Callaghan of SIPTU, wrote to the tribunal on 31 October 2012 stating as follows:-

“I write to advise that the above-named applicant has decided to withdraw her claim of sex discrimination against her employer following the conclusion of her internal grievance.  Can you please make the appropriate arrangements for the withdrawal of the claim?  I am copying this correspondence to the respondent’s representative, Ms Lisa Bryson of Carson McDowell, for her information … .”

2.	The claimant e-mailed the tribunal on 14 November 2012 stating that she did not give her consent to the withdrawal of her claim.

3.	The decision dismissing her claim, signed 8 November 2012, was issued to the parties on 19 November 2012.  

4.	The claimant further e-mailed the tribunal on 14 December 2012 requesting a review as she had not given permission to withdraw the case. 

The issue

5.	The issue before the tribunal was:-

“Whether the tribunal should review the decision to dismiss the claimant’s claim by virtue of Rule 34(3)(e) of the Industrial Tribunals Rules of Procedure 2005 (as amended), ie that the interests of justice require such a review.”

Sources of evidence

6.	The tribunal heard evidence from the claimant and considered e-mails presented to it by both parties.  

Reasons

7.	The claimant’s claim to the tribunal related to an incident on 4 June 2012 which was ultimately the subject of a grievance hearing held on 24 September 2012.  The grievance decision was issued on 4 October 2012 and has not been appealed.  SIPTU correspondence to the respondent’s solicitor maintains that the claimant was in their office on the day in which the claim was withdrawn.  The claimant disputes and maintains that she was at home and she had a telephone conversation with Ms Callaghan.  She also asserted that she told Ms Callaghan some time after 4.00 pm on 31 October 2012 that she did not want the case to be withdrawn.  However, at 17.18 hours on 31 October 2012, Ms Callaghan forwarded confirmation of the withdrawal to the Office of the Tribunals enclosing the letter referred to at Paragraph 1. of this decision, and furnished copies to Ms Bryson and to the claimant at her e-mail address.

8.	On 1 November 2012, the claimant e-mailed Ms Callaghan at 10.20 am in the following terms:-

“I don’t know what happened on the phone yesterday but I tried ringing you back twice and there was no answer or voicemail.  

Have you had a reply from Brian Higgins about your last letter that queries two points of my grievance?

Before making a withdrawal from tribunal I would have wanted to wait and see what his response is, considering the last week with not getting to complete my JAR assessment which was planned 3 times, and being told that I would be under a Performance Improvement Plan after I return from maternity leave, two years after the original PIP was created.  Then getting the verbal warning, which Deirdre Canavan stated would stay on my record and if anything further were to occur it would remain.

I’m a bit confused as to what the process is and I’m wondering if the withdrawal was made too soon, as I have not had a satisfactory response from Brian Higgins in relation to the grievance.  I’m not happy about the way I’ve been treated again and feel it would be necessary to state my case.”

9.	It was part of the claimant’s case before the tribunal that Ms Callaghan had asked for written confirmation of her withdrawal on 31 October 2012 and this had not been provided.  After e-mailing Ms Callaghan on 1 November 2012, the claimant realised that she was not in the office and forwarded the same e-mail to Anne Thompson, Office Manager in SIPTU.  However, Ms Callaghan replied to the claimant’s e-mail later on 1 November 2012 by stating:-

“As I advised at the outset that the claim was always very weak and if we allowed it to proceed we run a high risk of course which SIPTU would not meet if you like we can meet next week to discuss.”

10.	There was no evidence of the claimant having raised any form of complaint with SIPTU regarding what she alleges was done without her consent, ie the withdrawal of her claim, nor was there any indication that the claimant arranged to meet Ms Callaghan to discuss the matter further.  It also appears that additional matters had arisen subsequent to 4 June 2012 which were not part of the claimant’s claim before the tribunal, but were nevertheless exercising her mind at the time of the withdrawal of her claim by SIPTU.

11.	The tribunal is not convinced by the claimant’s evidence in respect of the withdrawal on 31 October 2012.  It is satisfied, on the balance of probabilities, that the withdrawal was effected after consultation with her, and that having thought about it overnight, she felt the withdrawal was premature as is reflected in her e-mail to Ms Callaghan on 1 November 2012.  

12.	The tribunal heard submissions from both the claimant and the respondent’s representative.  The respondent’s representative referred the tribunal to the case of Lindsay  v  Ironsides Ray & Vials [1984] IRLR 318 EAT which held the incompetence of a party’s representative is not a sufficient reason for a review of the decision, ie failure to argue that it was just and equitable to extend time in a discrimination case.  The tribunal also considered the EAT case of Council of the City of Newcastle-upon-Tyne  v  Marsden [UKEAT/0393/09/CEA] wherein Underhill J reviewed the case law and concluded that Rule 34(3)(e) confers a broad general discretion which should not be encrusted with too much case law, and that whilst the interests of finality in litigation remained important, this was not a conclusive argument.  He concluded that the principles underlying such decisions as Trimble and Lindsay remained valid as drawing attention to the underlying principles, which it would be wrong to ignore: but a liberal approach to the exercise of the discretion conferred by Rule 34(3)(e) was nevertheless permissible.  The position now is that it is open to the tribunal to review its decision if it considers that the interests of justice, broadly applied, justify such action.  In Paragraph 17 of his judgment in Marsden, Underhill J stated as follows:-

“The principles that underlie such decisions as Flint and Lindsay remain valid, and although those cases should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case, they are valuable as drawing attention to those underlying principles.  In particular, the weight attached to many of the previous cases to the importance of finality in litigation – or, as Philips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry – seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectation of both parties, and a successful party should in general be entitled to regard a tribunal’s  decision on a substantive issue was final (subject, of course, to appeal).  Likewise, I respectfully endorse, for the reasons which he gives the strong note of caution expressed by Mummery J in Lindsay about entertaining a review on the basis of alleged errors on the part of a representative.”

13.	Having carefully considered the evidence before it, together with the facts as found, and having taken into account the tribunal’s overriding objective, the tribunal is satisfied that it would not be in the interests of justice to review the decision to dismiss the claimant’s claim.  The decision is therefore confirmed.

Chairman:

Date and place of hearing:	4 January 2013, Belfast

Date decision recorded in register and issued to parties: