THE INDUSTRIAL TRIBUNALS

CASE REF:    383/09

CLAIMANT:	Roisin Kerrigan

RESPONDENT:	The North West Ireland Printing and Publishing Company Limited

REVIEW DECISION

The unanimous decision of the tribunal upon review is that the decision of the tribunal as promulgated shall be amended by an additional paragraph which shall be added to the decision, so amended, at Paragraph 31 (b) which shall read as is mentioned in paragraph 13 of this decision on review. In respect of the application for costs on the part of the claimant’s representative, the tribunal does not accede to such an application for costs.

Constitution of Tribunal:

Chairman:		Mr James V Leonard

Member:		Mr Robert J Hanna
                                 Mr Peter Sidebottom

Appearances:

The claimant was represented by Mr O’Brien, Barrister-at-Law, instructed by Patrick Fahy and Company, Solicitors.

The respondent was represented by Mr P Moore, of Employment Law Consultancy.

1.	This is an application for review by the respondent of a decision of this tribunal (“the decision”) issued on 4 August 2010.  By letter dated 17 August 2010, the respondent’s representatives wrote to the Secretary of the Industrial Tribunals confirming that the decision, despatched under a letter dated 4 August 2010 from the Office of Tribunals had been received by the respondent’s representatives and that a review of the decision was requested.  No issue arises in this matter regarding limitation of time in respect of the making of the review request and accordingly the tribunal now proceeds to the substantive issues in respect of this request for a review of the decision.

2.	
In the said letter dated 17 August 2010, the respondent’s representatives stated, “The Respondent believes that the interests of justice require such a review under Article 34(3)(e) The Industrial Tribunals (Constitution and Rules of Procedure) Regulations NI 2005”. Specific grounds for the review were further set forth in the letter, more of which will be referred to below when setting forth brief details of the respective contentions of the parties’ representatives.

THE STATUTORY BASIS FOR REVIEW AND FOR THE COMPOSITION OF THE TRIBUNAL CONDUCTING THE REVIEW

3.	Dealing, firstly, with the statutory basis of review, the review request identified especially one statutory ground upon which it was contended the review ought to be conducted. This was the so called “interests of justice” ground. That statutory ground is provided for by Rule 34(3)(e) of the tribunal’s Rules of Procedure. These Rules (“the Rules”) are contained in the First Schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Regulations”).  Under Rule 34(1) of the Rules it is provided that parties may apply to have a decision which is a final determination of proceedings reviewed. 
 
4.	Examining the issue of the proper composition of any tribunal having capacity to conduct a review, Rule 34 of the Rules provides that the decision shall be reviewed by the Chairman or tribunal who made the original decision.  In regard to the constitution of the tribunal, both that conducting the hearing at first instance and also that conducting any review, the Regulations provide at Regulation 5(2) for the composition of the tribunal, which normally comprises a Chairman and two other members.  However, Regulation 5(3) of the Regulations provides that, in any proceedings which are to be determined by a tribunal whose composition is as described in Paragraph 2 of that Regulation, those proceedings may, with the consent of the parties, be heard and determined in absence of any one member other than the Chairman.  

5.	In regard to the issue of the application of the Rules to hearings at first instance and reviews, Regulation 12 of the Regulations provides that the Rules shall apply in relation to all proceedings before an Industrial Tribunal except where separate Rules of Procedure are applicable.  Thus the Rules, in the instant case, apply not only to the hearing of this matter at first instance but also to any review conducted by the tribunal as provided for by Rule 36 of the Rules.  Finally, in terms of the outcome of any review, Rule 36 provides that a tribunal or Chairman who reviews a decision may confirm, vary or revoke the decision.

6.       In this matter, as was explained to the parties’ respective representatives at hearing, one of the panel members who sat in determination of the original complaint was unable to be present for the purposes of hearing the application for review.  Taking account of the overriding objective which is contained within Regulation 3 of the Regulations, and with the consent of the respective representatives, and further taking general account of the provisions of the Regulations and the Rules above mentioned, the tribunal was in this matter properly constituted with a Chairman and with one panel member only. The parties at hearing were fully in agreement with that proposition and that the tribunal, as thus constituted, might properly proceed with the conduct of this review matter.  Accordingly the matter proceeded on that basis and in accordance with the statutory powers contained within Regulation 5(3) of the Regulations.	
THE RESPONDENT’S SUBMISSIONS IN RESPECT OF THE REVIEW

7.      The tribunal noted the content of the said letter dated 17 August 2010 and also the oral submissions made on behalf of the respondent at hearing.  To summarise these submissions, it was contended that the tribunal had made an order consisting of an award of compensation in favour of the claimant against the respondent without giving any consideration whatsoever to the respondent’s submission regarding contributory fault nor to the statutory provisions contained within Articles 156 and 157 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). It was submitted that this non-consideration amounted to a procedural mishap, which procedural mishap the tribunal ought properly to rectify by reviewing its award for compensation.  It was contended that the respondent’s representative had expressly referred during oral submissions to an extract from Paragraph 4.015 of McGregor on Damages, 17th Edition, 2003 (with the relevant extract indeed being cited in the sixth paragraph of said letter of 17 August 2010) and it was contended that it had been argued that this was a case which demanded a substantial reduction in damages as a result of the claimant’s conduct.  The attention of the tribunal was further drawn in this submission to Article 156(2) of the 1996 Order. That provides that where the tribunal considers that any conduct of the complainant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. The equivalent provision applies similarly in respect of Article 157(6) of the 1996 Order in respect of the compensatory award.  

8.   The respondent’s submission continued with the contention that the statutory provisions of the 1996 Order referred to above required the tribunal to take a claimant’s conduct into account when determining the issue of compensation for unfair dismissal and that the effect of the tribunal’s submitted failure to consider and to apply these statutory provisions was effectively to decide that the claimant was completely without blame in regard to the “Lusty Beg incident” (such as is referred to in the decision). It was submitted that this was not supported by the tribunal’s own findings in the decision; specific extracts from the decision were mentioned in support of that proposition.  Finally, it was contended that it was not incumbent upon any representative expressly to raise in oral or written argument the import of the foregoing statutory provisions of the 1996 Order.

THE CLAIMANT’S SUBMISSIONS IN RESPECT OF THE REVIEW

9.     	On behalf of the claimant, the claimant’s representative conceded that the proposition was not in contention that any representative did not have to expressly raise the statutory provisions of Articles 156(2) and 157(6) of the 1996 Order for the tribunal to be required to give appropriate consideration to those provisions.  However, in all other respects the claimant resisted the application for the review.  It was contended that the application was vexatious and the tribunal was referred to the substantive findings of fact contained within the decision.  It was submitted that the tribunal’s decision had been entirely clear in the finding made of unfair dismissal. Materially, it was fully clear from the tribunal’s findings that the claimant’s conduct did not in any way contribute to the dismissal.  The tribunal had identified effectively two stages in the process to which the claimant had been subjected. Examining the latter stage as the tribunal had done, the decision made clear that the claimant’s earlier conduct in respect of the “Lusty Beg incident” had no bearing upon that whatsoever. The earlier stage was completely concluded prior to the second stage commencing. In respect of the reason identified for the dismissal, the claimant’s earlier conduct played no part in the effective cause of the dismissal. Therefore there was no issue of any contributory conduct or fault on the part of the claimant bearing in any manner upon the respondent’s decision to dismiss.

10.     In addition to the foregoing submission, the tribunal heard an application on the part of the claimant’s representative for costs, with the argument being advanced that this application for a review was vexatious, coming as it did in the context of a very clear and very comprehensively expressed decision on the part of the tribunal.  The claimant’s representative submitted that there was no basis whatsoever for the review application. Thereby, additional costs had been incurred by the claimant who was entirely blameless in the matter.  Responding to that submission, the respondent’s representative contended that the application was quite properly made and there was a material omission from the tribunal’s decision which had not dealt with the issue of contributory fault.  This respondent was properly entitled to know why that was the case and what the tribunal’s determination was in that regard.

THE TRIBUNAL’S DECISION ON REVIEW

11.     Having considered the written grounds for review as set forth in the said letter dated 17 August 2010 and the respective oral submissions, the tribunal determines that it is proper that the decision shall be reviewed and that the decision shall be amended in the respect such as is set out below.  Firstly the tribunal would wish to state that the tribunal accepts the proposition that any tribunal must consider the issue of contributory fault if it finds that there was conduct on the part of an employee that was or could be regarded as blameworthy (in that respect following the Employment Appeal Tribunal in Swallow Security Services Limited v Millicent (UKEAT/0297/08)). However before proceeding further with that, it is proper that the tribunal raises some concerns regarding part of the content of the said letter from the respondent’s representatives of 17 August 2010.  The sixth paragraph of that letter sets forth in some detail the claim that the respondent’s representative had specifically referred during oral submissions to a detailed extract from McGregor on Damages, 17th Edition (2003).  When questioned by the tribunal about that at the review hearing, the representative indicated that he had with him at the original hearing material upon which to make that specific submission. However, the tribunal is quite certain that the respondent’s representative at hearing did not make any such submission with reference to that text and indeed made only the briefest of references to contributory fault by means of a single brief sentence stating to the effect that there should be 100% reduction in damages on account of the claimant’s contributory fault. There was certainly no elaboration made by the representative upon that submission. There were certainly no specific references to statutory, case law, or textual grounds to support that simple statement.  The tribunal is somewhat concerned that such a categorical and unqualified assertion is put forward in the letter requesting the review where there is no substance in the contention that such a submission was actually made at hearing.

12.   Having made that observation, as mentioned, it is certainly the case that the representative made a very brief but nonetheless express submission that damages ought to be reduced by 100% on account of the claimant’s stated contributory fault.  Having raised that in submissions, whilst the tribunal did indeed give full consideration to the issue in its deliberations before promulgation of the decision, that was not expressly stated in the decision which issued.  The tribunal accepts that that was an omission which now requires to be rectified.  Whilst authority suggests that any tribunal’s decision does not require to be an elaborate formalistic product of refined legal draughtsmanship, it clear that a tribunal must state the reasons which led the tribunal to reach the conclusion. Kerr LCJ in The Matter of an Application by Clanmil Housing for Judicial Review [2003] NIQB 38 cited with approval the case of Meek v City of Birmingham DC [1987] IRLR 250 at 251 where Bingham LJ stated: 
 
‘It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted.’ 

13.   Thus the decision ought properly to deal with and to dispose of any arguments advanced, and of course that would include the foregoing argument pertaining to the submission in regard to the claimant’s stated contributory fault.  That being the case, the decision requires to be amended by the inclusion of a reference to the foregoing argument and to the disposal of that argument by the tribunal in the decision.  Accordingly, the decision shall be amended in the following respect, that is to say by an additional paragraph which shall be added to the decision so amended. This additional paragraph shall be at Paragraph 31 (b) which shall read as follows:-

	“31(b). The tribunal noted the respondent’s representative’s submission that any compensation for unfair dismissal ought to be reduced by 100% on account of the claimant’s stated contributory fault.  The tribunal, having fully considered that submission, rejects the submission both in regard to the percentage reduction sought and also in its entirety.  This rejection of the submission by the tribunal and consequent determination is for the reason that the decision on the respondent’s part to dismiss the claimant at the conclusion of the disciplinary process in this matter, and the decision of the respondent to uphold that decision to dismiss upon appeal, is not influenced by or affected by the conduct of the claimant in respect of the incident which occurred at Lusty Beg Island to any extent so as properly and fairly to merit any reduction of compensation on account of contributory fault.  The cause of the dismissal is as stated in this decision and the tribunal’s determination is that contributory fault on the claimant’s part played no part in that cause meriting any reduction in compensation.”

14.     In respect of the application for costs on the part of the claimant’s representative, in view of the fact that there has been an omission from the decision as foregoing, requiring rectification in this review, the tribunal does not accede to this submission in respect of costs. The tribunal, bearing in mind the principles to be considered in regard to the proper awarding of costs (see for example McPherson v BNP Paribas [2004] EWCA Civ 569 and Berry v Recruitment Revolution UKEAT/0190/10/LA) does not accept the contention that this application for review on the respondent’s part has been brought in a vexatious manner (nor in any other manner falling within the terms of Rule 40 (3) of the Rules) and it is therefore not appropriate to award costs in these circumstances.

15.   Save in respect of the foregoing amendment, the decision stands as previously promulgated.  This decision on review shall be deemed amended as stated in paragraph 13 above and shall be read accordingly, as so amended, and in all other respects the tribunal’s decision as promulgated is affirmed herewith.

Chairman:

Date and place of hearing:		11 October 2010, Belfast.

Date decision issued to parties: