THE INDUSTRIAL TRIBUNALS

CASE REF:    1661/10

CLAIMANT:	John Garvey

RESPONDENT:	Norlect Engineering (UK) Limited

DECISION ON A REVIEW

The decision of the tribunal Chairman sitting alone is that the decision of the tribunal promulgated on 26 October 2010 is revoked and a new hearing will be held on a date to be notified to the parties before a differently constituted tribunal.

Constitution of Tribunal:

Chairman (Sitting Alone):	Ms J Knight

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr Stephen Sheppard, Director of the respondent company.

1.	The hearing of this matter took place on the 14th September 2010 and the tribunal (Chairman sitting alone) promulgated its decision on the 26th October 2010 and held that the claimant is entitled to a redundancy payment of £3,200.00. 

2.	The respondent sought a review of the decision by letter dated 28th October 2010, attaching two further copies of a P45 (which were available at the hearing) and an extract from guidance issued by the Department for Employment and Learning. 

3.	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 by the tribunal on five specific grounds. The respondent relies upon the following ground:

…..(e) That the interests of justice requires such a review. 

4.	Rule 34(3)(e) confers a wide discretion on industrial tribunals which must be exercised judicially and with regard, not just with the interests of the party seeking the review, but also the interests of the other party and the public interest requirement that there should as far as possible be finality of litigation. Tribunals must seek to give effect to the overriding object of dealing with cases justly when exercising their discretion, which requires the application of recognised principals to the particular circumstances of the case. In Trimble v Super Travel Limited [1982] IRLR 451, the Employment Appeal Tribunal held that “whether a matter is appropriate for review by the Industrial Tribunal or should be dealt with by way of an appeal (in Northern Ireland, on a point of law to the Court of Appeal) is not question of whether it involved a minor or major error but whether or not a decision, alleged to be erroneous in law, was reached after there had been a procedural mishap. The fundamental question is whether or not the Industrial Tribunal’s decision was reached after the parties had had a fair and proper opportunity to present their case, on the point, being aware that it was a point which was an issue. It is not appropriate for an Industrial Tribunal to review its decision simply because it was said that there was an error of law on its face. If the matter has been ventilated and properly argued and the decision reached in the light of all relevant arguments, then errors of law of that kind fall to be corrected by (the Court of Appeal). If on the other hand due to an oversight or some procedural occurrence, one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substances, then that is a procedural short coming in the proceedings before the Industrial Tribunal which can be correctly dealt with by a review, however important the point of law or fact may be”. 

5.	A hearing was arranged for 9 December 2010 to consider the application for review. The parties were made aware that if the application for a review is granted, the tribunal would move immediately to hear the review; and in this event, the parties should be ready to address the tribunal and provide documentary and other evidence on the question of whether the respondent company and Clanrye Electrical Supplies Limited are associated employers within the meaning of Article 4 of the Employment Rights (NI) Order 1996. The parties were asked to ensure that any witnesses that they may wish to call to give evidence on this point were available on the date of the hearing.

6.	At the hearing of the review application Mr Sheppard made a number of oral submissions and referred to respondent’s grounds for review contained in his letter of 28 October 2010. He suggested that the interests of justice require the decision to be reviewed for a number of reasons which may be summarised as follows; that the tribunal did not make correct findings in relation to a number of factual issues because either it did not give proper consideration to or ignored Mr Sheppard’s evidence and because the tribunal failed to give proper consideration to or ignored the contents  of documentation; and further that the tribunal made an incorrect assumption that the respondent company and Clanrye Electrical Supplies Limited (“Clanrye”) were not associated employers. Mr Garvey did not object to a review of the tribunal’s decision. 

7.	Having carefully considered the respondent’s application for a review I decided as follows:

(a)	It appears that Mr Sheppard alleges on behalf of the respondent that the decision of the Tribunal was perverse in that the Tribunal reached conclusions which were not supported by the evidence and as such was one that no reasonable Tribunal properly addressing itself on the law could come to. This relates to the tribunal’s findings of facts on numerous matters which were in dispute including the terms and conditions of the claimant’s employment (which were referred to at places as the claimant’s contract of employment or contractual terms); and in connection with a number of matters including the length of the trial period, the date upon which the claimant’s employment ceased with the respondent company, whether the claimant raised a grievance concerning the suitability of the employment with Clanrye, whether the claimants employment transferred on the 17th November 2009 to Clanrye.
 
(b)	 The Tribunal made findings that the claimant’s employment with the respondent company terminated when he took up employment with Clanrye Limited. The Tribunal reached a conclusion that Clanrye Limited was not an associated company or employer within the meaning of the legislation. This finding is crucial to the Tribunals decision that the claimant is entitled to a redundancy payment. The findings were made on the basis of the oral evidence of Mr Sheppard on behalf of the respondent. Neither the claimant nor Mr Sheppard are legally qualified or had the benefit of legal advice during the hearing. On careful reflection I consider that the parties may not have been given the opportunity to adduce evidence and make properly supported submissions to the Tribunal as to whether the respondent company is and Clanrye are associated employers and as such I consider that this matter was not properly ventilated and argued at the hearing.

(c)	Accordingly I consider that this matter falls within the category of cases referred to in the Trimble case as an oversight or some procedural occurrence and in weighing all the relevant factors I was satisfied that it was in the interests of justice to move directly to a review hearing. 

8.	Article 4 of the 1996 Order provides that “for the purposes of this Order any two employers shall be treated as associated if-

(b) both are companies of which a third person (directly or  
     indirectly) has control
and associated employer shall be construed accordingly.”

9.	Mr Sheppard provided documentation including the Memoranda and Articles of Association and Annual Returns to the Companies Registry belonging to Norlect Engineering (UK) Limited and Clanrye Electrical Supplies Limited. He submitted that these documents show that Mr Stephen P Sheppard and Mr Patrick J Ward hold in each company 60% and 40% of the shareholding respectively. Therefore it follows that the claimant did not satisfy the conditions for a redundancy payment as previously held by the tribunal.  Mr Garvey said that he wanted the tribunal to decide whether the companies were associated employers. However he submitted that the offer of alternative employment made by Clanrye Electrical Supplies Limited was made more than four weeks after his employment terminated. He referred the tribunal to a guidance leaflet issued by the Department for Employment and Learning.

10.	I explained to the parties that on review the tribunal could confirm, vary or revoke the decision. If the decision is revoked I must order the decision to be taken again at a new hearing. Mr Garvey stated that his preference was that I should confirm the original decision. Mr Sheppard stated that he would be content for the decision to be varied without the necessity of a new hearing.

11.	Having carefully considered the evidence and the submissions of the parties it appears to me that Norlect Engineering (UK) Limited and Clanrye Electrical Supplies Limited do fall within the definition of associated employers contained in Article 4(1) of the Employment Rights (NI) Order 1996. Having previously found that the two companies were not associated employers, I do not consider that I went on to make sufficient findings of fact on a number of important issues which would enable me to vary the decision. In the circumstances I am satisfied that it is in the interests of justice to revoke my original decision and that a new hearing should be held before a differently constituted tribunal. A notice of the new hearing will be sent out to the parties in due course.

Chairman:

Date and place of hearing: 9 December 2010	, Belfast

Date decision recorded in register and issued to parties: