FAIR EMPLOYMENT TRIBUNAL

CASE REF:   101/01 FET

CLAIMANT:		Laurence Galbraith

RESPONDENT:		Bombardier Aerospace

DECISION

The unanimous decision of the Tribunal, on an application for review by the claimant, is that:-

(i)	it is just and equitable to extend the time limit for making an application for a review; and

(ii)	the decision of the Tribunal issued on 28 June 2005 is confirmed.
Appearances:
The claimant was represented by Mr J Bowers, of EIRS.
The respondent was represented by Ms N Murnaghan, Barrister-at-law, instructed by Elliott Duffy Garrett, Solicitors.

1.	The hearing of the application in this matter took place on 21 and 22 March 2005, 13 and 15 April 2005, and 16 and 18 May 2005.  The decision of the Tribunal was issued to the parties on 28 June 2005.

2.	The unanimous decision of the Tribunal, which is the subject of review, is that the claimant, Mr Galbraith, was not discriminated against by the respondent company on the ground of his political opinion.  The Tribunal ordered the claimant to pay to the respondent company the sum of £300.00 in respect of costs incurred by it on the ground that the claimant had, in bringing and conducting the proceedings, acted unreasonably.

3.	(i)	By letter of 5 August 2005 the claimant asked that the Order for Costs be set aside.	
			
	(ii)	By a further letter of the same date, he asked for a review of the substantive decision.  He accepted, in that letter, that he had not complied with the 14 day time limit for making an application for review (because he had been out of the jurisdiction during July 2005) and asked for the time limit to be extended.  The ground on which he sought a review was that the interests of justice required such a review.	
			
	(iii)	Following preliminary consideration of the application for review, the Chairman directed that it be listed for hearing.  It was indicated to the parties that at the outset of the hearing the Tribunal would determine whether it was just and equitable to extend the time limit for making an application for review.	
			
	(iv)	Having heard the evidence of the claimant and his explanation for not complying with the 14 day limit, the Tribunal is satisfied that it is just and equitable to extend the time limit.  While the claimant has not accounted totally satisfactorily for all the period he was out of the jurisdiction, it is clear that even had the decision come to his attention before he left the United Kingdom, he would have had very little time to deal with it, and had he made a prospective application for an extension of time in late June or early July, it is difficult to see any basis on which it would have been refused.	

4.	We turn now to the substantive application for a review:-

(i)	The claimant’s second letter of 5 August 2005 asking for a review of the substantive decision of the Tribunal refers to rulings made by the Chairman.  It was pointed out to Mr Bowers, for the claimant, at the review hearing that decisions were made by the Tribunal.  Mr Bowers did not make the case that the panel members were, in effect, overborne by the Chairman, though he perhaps somewhat qualified this when he said that in his experience the Chairman played a ‘pivotal’ role in Tribunal proceedings.

(ii)	Many decisions or procedural matters and the admissibility or otherwise of documents were made in the course of the proceedings.  It is not accepted that those rulings were inconsistent, and on occasions the Tribunal ruled in favour of the claimant.  We do not consider is appropriate to re-open those rulings at the review stage.

(iii)	Mr Bowers, for the claimant, also attacked findings of fact made by the Tribunal, and in doing so subjected the Tribunal’s decision to detailed examination.  Related to this, he also complained that the Tribunal’s written decision did not refer to any of the evidence given by two witnesses called on behalf of the claimant.  One of these witnesses gave evidence of the poor state of industrial relations in Bombardier, at least where the company and the claimant’s ‘wing’ of the MSF were concerned.  This fact was clearly evident, and not in dispute, and the witness was not subjected to any substantial cross-examination by the respondent’s counsel.

More generally, it is not a function of the Tribunal to recite evidence at length.  Its task is to make, and set down, findings of fact from that evidence.

As far as the findings of fact which were attacked by Mr Bowers are concerned we do not consider it necessary to set them out in detail here.  Our main finding of fact was that we accepted the evidence of the respondent’s witnesses that they had not been pressurised by senior managers into not short listing the claimant.

We also found that, in any event, the claimant did not satisfy the short listing criteria.

The claimant does not like these findings, and does not accept them, as he is entitled to do.

However, these and other findings of fact were all findings of fact which it was within the Tribunal’s jurisdiction to make, having had the opportunity of hearing all the witnesses and considering the evidence they gave.

(iv)	All the factual issues raised in the review had been raised before, and no new evidence, or evidence which might cast those facts in a different light, was identified.

The review did not raise any issue which was not dealt with at the substantive hearing.

5.	As far as the issue of costs is concerned, the claimant alleges that the Tribunal did not consider his ability to pay.  (His only income is Incapacity Benefit payable at          £59.65 per week.)  This is incorrect.  The claimant’s income had been set out in a schedule of loss, and he gave evidence to the Tribunal of his failure to find employment.  In any event the 2004 Rules, which applied at the time of hearing, did not require the Tribunal to take means into account.  (See  :  Kovacs  v  Queen Mary and Westfield College [2002] IRLR 414 CA.)

6.	We are not satisfied, in relation both to the substantive decision and the Order as to costs, that it has been shown that the interests of justice require a review.

7.	We confirm the decision of this Tribunal issued on 28 June 2005.

Chairman:

Date and place of hearing:	26 September 2005, Belfast

Date decision issued to parties: