THE INDUSTRIAL TRIBUNALS

CASE REF:    478/12 

CLAIMANT:	Sam Moffett

RESPONDENT:	Oakwood Distribution Ltd

DECISION UPON AN APPLICATION FOR REVIEW

It is the unanimous decision of the tribunal that the claimant’s application for review is hereby dismissed.

Constitution of Tribunal:

Chairman:	Ms W A Crooke

Members:	Mr P McKenna
	Mr John B Kinnear

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Neil Phillips, Barrister-at-Law, instructed by Jones Cassidy Jones Solicitors.

RELEVANT LAW

1.	This matter came before the tribunal on the grounds which were contained in Rule 34(3)(a)(d) and (e) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulation (Northern Ireland) 2005.

2.	This states 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. …

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

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

				(b)	a party did not receive notice of the proceedings relating 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 requires such a review.

CONCLUSIONS

3.	Rule 34(3)(a)

	The decision was wrongly made as a result of an administrative error.

  	The claimant contended that the tribunal had been misled by the respondent and distracted from considering the timeline of events.  He said that this arose in a number of ways but principally in relation to two communications from Wendy Chambers of 11 January 2012 to Laleh Yaghoobzadeh.  The claimant sought to argue that these showed that the decision to dismiss him had already taken place before the disciplinary hearing and the tribunal missed this in its reading of the documents.  The claimant argued that he was supported in this allegation by a text message being wrongly classified as an e-mail.

 	The tribunal did not accept that this could be classified as an administrative error.  The tribunal accepts that these were matters that were within the knowledge of the claimant at the original hearing and upon which he did cross-examine (certainly in respect of the e-mail of 11 January 2012) and upon which it was open to him to cross-examine in respect of any other document.  The tribunal did not accept that it was in any way distracted by the respondent’s presentation of the events, especially as the claimant, contrary to what had been agreed at the Case Management Discussion, provided his own bundle.  Furthermore, the tribunal does not accept that its alleged distraction was an administrative error.  The tribunal considered that the claimant was seeking to re-run the evidence to add more weight to parts of his case that he had not previously considered.

4.	Rule 34(3)(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 or foreseen at that time.  

	The “evidence” was a folder of documents that had not previously been disclosed to Mr Phillips.  The tribunal directed that Mr Phillips be given an opportunity to look at these documents and having done so he addressed the tribunal.  He said that he had agreed with the claimant that he could inform the tribunal that all the documents related to the issue of whether the respondent and Tesco are the same entity.  Furthermore, he said the claimant’s argument involved the tribunal overlooking the legal issue of separate legal personality.  Essentially the claimant admitted all these documents could have been foreseen at the original hearing and did not constitute new evidence.  The claimant argued that this showed that contrary to the legal position, the respondent and Tesco were a single entity.  As the claimant admitted that these were documents that could have been foreseen, the tribunal has not inspected them.  The claimant did not provide the tribunal with any reason or case law on the basis of which it could set aside the principle of separate legal personality.  As the claimant had been abundantly made aware in advance that the question of Tesco being a separate third party customer of the respondent was an argument that was going to be made in the respondent’s defence, his contention that he did not realise how much emphasis the respondent would put upon this argument has no merit.  For all of these reasons we dismiss the claimant’s application for review on this ground.

5.	Rule 34(3)(e)	

	The interests of justice require such a review

	The substantive basis for this contention was that some documentation seemed to suggest that Wendy Chambers had already made the decision to dismiss the claimant or was party to such a decision in advance of his disciplinary hearing.  As the claimant had an opportunity to cross-examine Wendy Chambers at the original hearing the tribunal has difficulty with accepting that the interests of justice require a review on this basis.  The tribunal accepted that Mr Paul Cannon was the person who made the decision to dismiss the claimant and that prior to so doing he had made strenuous efforts to resolve the situation.  The tribunal also considered that the import of the e-mails was a matter of interpretation.  It could have been argued that Ms Chambers was simply discussing options available rather than stating that the decision had already been taken.  Once again it seemed that the claimant simply wished to rerun this part of his case.  The tribunal found Mr Cannon at the original hearing to be a clear and reliable witness and sees no ground for setting aside the weight it attached to his evidence in reaching the original decision.

6.	Finally, as the claimant has not advanced any basis upon which the tribunal’s decision reached on the basis of the case of Henderson  v  Connect (South Tyneside) Ltd to be in any way set aside, on this basis we also refuse the application for the review.

Chairman:

Date and place of hearing:  1 March 2013, Belfast.

Date decision recorded in register and issued to parties: