Mr C Mcdonald v Ross’s of Edinburgh Ltd: 4105574/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4105574/2023
Between
Mr C McdonaldClaimantRoss’s of Edinburgh LtdRespondent
Before
Employment Judge M A MacleodMr J Anderson for respondentDirector for respondentDate 31 July 2024
JUDGMENT
The Judgment of the Employment Tribunal is that the respondent’s application for strike out of the claimant’s claims is refused.
REASONS
[1]The claimant presented a claim to the Employment Tribunal on 2 October 2024 in which he complained that he had been unfairly dismissed and unlawfully deprived of pay in respect of annual leave accrued but untaken as at the date of termination of his employment.[2]The respondent submitted an ET3 in which they resisted the claimant’s claims.[3]The claimant’s claim was essentially that he suffered a serious injury at work due to “no safety being on a machine”, on 28 August 2023 at 8.30am. He maintained that no training had been given, and that as a result of his injury he required surgery. He complained then that he had been dismissed, with no warning or pay. Strike-out Application[4]On a number of occasions, the respondent has raised with the Tribunal a request that the claim be struck out under Rule 37 of the Employment Tribunals Rules of Procedure 2013.[5]The parties have now agreed that this application may be dealt with on written submissions only, and that no Hearing is required.[6]On 5 February 2024, the respondent wrote to the Tribunal complaining that they considered the comments in the ET1 to be “vexatious” given that they are a food manufacturer with SALSA accreditation, where the premises are audited on a regular basis. They asked the Tribunal to give consideration to striking out the whole claim under Rule 37.[7]The claimant objected to the application by email dated 21 February 2024.[8]On 26 February 2024, the respondent confirmed that notwithstanding the provision of certain information by the claimant they wished to insist on their application for strike-out.[9]On this occasion the application was based on their assertion that the claimant had not complied with the Tribunal’s Order dated 6 November 2023, despite being provided with additional time, resulting in the original Hearing date being postponed.[10]The information which they complained that the claimant had not provided related to the issues of remedy sought and mitigation of loss.[11]They further requested strike out on the basis that the claimant had provided documents and evidence which were scandalous, malicious and vexatious as they did not relate to the claim, or have anything to do with the Employment Tribunal. They accused the claimant of having misled the Tribunal.[12]By email dated that same date, the claimant once more opposed the application for strike out. He said he had complied with everything to his knowledge. He described his injury as a “life-changing one”, for which he accused Mr Anderson of the respondent of taking no responsibility. He maintained that the purpose of the health and safety evidence was to demonstrate the lack of health and safety in the workplace.[13]On 11 March 2024, the respondent wrote again to the Tribunal to repeat their assertion that the claimant’s raising of health and safety concerns were derogatory, vexatious and malicious, and had no reasonable prospect of success. They also repeated their request for strike out on that basis and on the basis of the manner in which the proceedings were being conducted by the claimant.[14]The claimant repeated his objections to the application, and asserted that he believed that the respondent was delaying the proceedings. Discussion and Decision[15]Rule 37(1)(b) of the Employment Tribunals Rules of Procedure 2013 provides: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds-(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious…”[16]Rule 37(2) provides: “A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”[17]The application is made under Rule 37(1)(a) and (b).[18]Essentially, the application under Rule 37(1)(a) is that the claimant’s claim is vexatious and has no reasonable prospect of success.[19]I referred to Bennett v Southwark London Borough Council 2002 ICR 881 CA and Bolch v Chipman 2004 IRLR 140 EAT.[20]Bennett establishes some principles which are of assistance in this case. It is not simply the manner in which the representative or party acts but how they conduct the proceedings; and “scandalous” in this context is not a synonym for “shocking”, but rather means either the misuse of legal process in order to vilify others, or the giving of gratuitous insult to the Tribunal in the course of the legal process; and where the conduct of proceedings is found to have been scandalous, the Tribunal must go on to consider whether striking out is a proportionate response.[21]Bolch requires the Tribunal to consider, if the conduct is scandalous, whether a fair trial is still possible; and even then to decide whether or not a lesser sanction may still be appropriate.[22]In this case, as I understand it, the respondent’s complaint is that the claimant has raised unjustifiable and malicious complaints about the health and safety precautions in place and enforced in the workplace overseen by the respondent. He considered that the accident which occurred to him to his injury was one which resulted from the respondent’s approach to health and safety matters.[23]The respondent is plainly upset and angry about this assertion, and has sought to refute it by pointing to the credentials obtained by their company in maintaining those standards. Further, the ET3 makes clear that they regard the claimant as being at fault for the incident.[24]In short, there is a significant factual dispute between the parties as to what happened and what caused the claimant’s injury, and significantly who was to blame for it.[25]One difficulty which arises is that reference appears to be made to legal advice being sought by the claimant in relation to the incident, and to an ultimatum being given to the respondent’s insurance company in respect of liability for the injuries he sustained. However, these are matters which are plainly outwith the jurisdiction of the Tribunal, and belong in personal injuries litigation in the civil courts. It is plain that this is a separate process: the claimant makes reference to legal advisers, but continues to represent himself in these proceedings.[26]There is no doubt that the allegations which the claimant is making in his correspondence are potentially damaging to the respondent as a food production company which requires to satisfy the demands of a number of authorities in order to continue carrying out its day-to-day activities. As a consequence, it is in my judgment entirely understandable that the respondent considers that those allegations have no reasonable prospect of success, or may be regarded as vexatious.[27]However, it is not clear to me that the high test for finding that a claim has no reasonable prospect of success is met in this case. The claimant’s claim before this Tribunal, based on the ET1, is one of unfair dismissal and of unlawful deductions from wages. The claimant’s complaint of unfair dismissal is very brief in its terms and does focus upon the incident in which his injury occurred. He suggests, in fairly general terms, that he was unfairly dismissed as a result, and appears to assert that he should have been paid for outstanding holiday pay and notice pay.[28]The respondent’s position is more detailed and quite clear, that there were sound reasons for the claimant’s dismissal.[29]In the final Hearing in this case, the respondent will lead its evidence first, setting out the reason for dismissal and the basis and procedure upon which that decision was taken. The Employment Tribunal hearing the case will be well capable of ensuring that the evidence is restricted to those matters within its jurisdiction, and at this stage, while sparse, the claimant has presented an unfair dismissal claim which can proceed on its current terms.[30]It will be important for the claimant to understand that irrelevant evidence will not be heard, or if heard, will be disregarded by the Tribunal. He should understand, and take this Judgment as notice, that he will not be permitted to use the Tribunal process or Hearing to make sweeping criticisms about matters which are not relevant to the Tribunal’s decision on the claim he has made. The Tribunal does not exist to carry out wide-ranging reviews on whether employers are meeting all of their legal obligations, nor indeed on whether they are good employers. In this case, the only issues will be whether or not they had sufficient grounds upon which to dismiss the claimant, and whether or not they made unlawful deductions from the claimant’s wages.[31]Accordingly, the claim as presented cannot be said to have no reasonable prospect of success, at this stage, without having heard any evidence as to the facts. Since the decision of the Tribunal will rest on the findings of fact which it makes following the evidence led, and since strike out is a draconian sanction only to be applied in the most extreme circumstances, I am not satisfied that it would be in the interests of justice to strike the claimant’s claims out on the basis that they have no reasonable prospect of success. It is not possible to determine the factual disputes until evidence has been heard.[32]The next issue is whether or not the claimant has conducted the proceedings in such a manner as to be scandalous, vexatious or unreasonable, and if so, whether his claims should be struck out on this ground.[33]There are two criticisms made by the respondent here, as I understand it. Firstly, they complain that the claimant persists in making allegations about the respondent’s “disregard” for health and safety, an allegation which plainly upsets and offends the respondent given its position as a food manufacturer; and secondly, that the claimant has not complied with Orders made by the Tribunal in relation to the remedy which he is seeking.[34]Dealing with the allegations made by the claimant, it is plain that the claimant wishes to argue that his dismissal was unfair, and in doing so to criticise the respondent for the fact that he sustained what he maintains are significant injuries at work. He also alleges that certain conversations took place between himself and Mr Anderson of the respondent in which strong language was used. Again, this appears to be directed at persuading the Tribunal to find that the respondent treated him unfairly in the process leading to his dismissal. The respondent strongly denies the allegations.[35]It is clear that the allegations cannot be determined by the Tribunal until evidence has been heard. It is not possible, as I have found above, to determine the dispute until factual findings can be made, and that can only be done once evidence has been heard. The opportunity will be given to both parties to give evidence in support of their respective positions, and the Tribunal will decide the case thereafter.[36]That the respondent considers that the allegations made against them are offensive is not an insignificant matter, but it does not mean, balancing the interests of both parties, that the Tribunal should not allow the case to proceed to a final Hearing.[37]I would reiterate, however, that it is important that the claimant understands that any allegations he makes will be subject to challenge in the Tribunal, and that they must relate to the issues for determination in this forum. The Tribunal will not hear evidence relating to a personal injuries claim which belongs in another court.[38]So far as the second aspect of this application is concerned, that the claimant has failed to comply with Tribunal Orders, I am not persuaded that the claimant has acted in a manner which can be regarded as vexatious or scandalous. The claimant has sought to provide some information about his losses; he has asked for extensions of time, which reinforces the understanding that he is attempting to comply with the Orders; and the claimant is an unrepresented party with no legal qualifications. Taking these matters into consideration, I am not persuaded that it would be proportionate or fair to strike the claimant’s claim out. This is a case which requires evidence to be heard, and I find that there is no reason not to allow the claimant to proceed to a Hearing. If he has not complied with the obligation to provide evidence in support of his argument on remedy, that is likely to damage his own interests rather than the respondent’s.[39]The respondent has argued that the claimant has misled the Tribunal in seeking an extension of time, by saying that an email went into his spam folder. This is clearly what the respondent believes, or perhaps more accurately suspects. The Tribunal cannot make any finding about this.[40]As a result, I do not consider that the application should succeed. Striking a claim out is a draconian sanction which should only be applied in circumstances where it is clear that the claimant has raised a hopeless claim, acted in a vexatious manner or shown disrespect to the Tribunal, none of which is clear. Further, I am of the view that a fair trial is still possible in this case, and that it should proceed to a final Hearing.[41]Accordingly, while not unsympathetic with the respondent’s application and concerns in this case, I am not prepared to grant their application for strike out. Murdo A Macleod
The Issues
[42]The Tribunal having given parties guidance at the conclusion of the evidential Hearing on the first day, as to structure and content of submissions which would best assist the Tribunal in determining the issues. Each party addressed the Tribunal in submission or on the second day of Hearing. The respondent having led at the Hearing addressed the Tribunal first, followed by the claimant with the respondent’s representative exercising a limited right of reply in conclusion. Submissions for the Respondent[43]The respondent’s representative invited the Tribunal to conclude that the dismissal fell to be regarded as fair. The claimant had been dismissed for reason of his conduct which, in relation to the incident in which he had injured himself by putting his hand under the safety dome into proximity with the moving parts of the machine when it was being operated, the respondent regarded as gross misconduct, endangering his own safety and the safety of other employees. The claimant had been the subject of a number of disciplinary sanctions and on two previous occasions, at the claimant’s request, the respondent had agreed to give him further opportunities to prove himself, recognising the value in the positive qualities which he brought to the job which it had sought to balance against the negative aspects of his conduct. The elements of misconduct had included the claimant not following the prescribed recipes for the boiling of sugar from which product was created, and maintaining that he knew better than those who had prepared the recipes at what temperature the sugar should be boiled, of instances of threatening behaviour towards other colleagues including swearing at his employer and Director, the respondent’s representative, and, of behaving threateningly towards his supervisor and Line Manager.[44]In the respondent’s perspective, each opportunity afforded the claimant to improve his behaviour had resulted, ultimately, in further incidents of misconduct culminating with his disregard of safety procedures. While recognising that the respondent had not convened a formal disciplinary hearing in respect of the health and safety incident prior to deciding to dismiss the claimant, the respondent’s representative made the point that, following his accident, and injury, the claimant had remained on extended sick leave and was not available for such a Hearing but, as was confirmed in the letter dismissing him which is produced at (R-1), he was afforded and had been offered the right to appeal against the decision to dismiss him, a right which the claimant had chosen not to exercise. Had he exercised the right to appeal, the Appeal Hearing would have been fixed for a date on which the claimant was fit and able to attend and participate. At that Hearing the claimant would have had the opportunity of saying anything more than that which he had already said on the day of the incident, by way of explanation of what had happened, all of which would have been taken account of in the context of the CCTV footage. He would have also been able to make such submissions, as he wished to, about his previous record, in respect of which he had, likewise, never chosen to exercise his right of appeal against any warning or previous dismissal.[45]At the end of the day, the respondent had lost confidence in the claimant’s ability to conduct himself appropriately in the work place. The respondent had no confidence that had it not dismissed the claimant there would be no further recurrence of misconduct, including in relation to the observance of health and safety procedures and the operation of machinery. The respondent had concluded that the claimant was a danger to himself and to fellow employees in the work place and, in those circumstances, had acted reasonably in imposing the sanction of dismissal. Submissions for the Claimant[46]The claimant invited the Tribunal to hold that the dismissal fell to be regarded as unfair on a number of grounds;(a) firstly because the respondent had waited for a period of 4 weeks after conducting an investigation into the circumstances of his accident on the day on which it had occurred, before dismissing him during which time he, the claimant, was on sick leave. Although the claimant did not expressly say so, the inference arising from his submission was that he would have expected there to have been a formal Disciplinary Hearing at which he could have said something with a view to persuading the respondents not to dismiss him, before they took the decision to dismiss.(b) In so far as the respondent sought to rely upon the content of the Staff Handbook the claimant, while accepting that the Staff Handbook may well have been displayed and available on the top left hand part of the Staff Notice Board, stated that he, for his part, had never seen it, by which the Tribunal upon seeking clarification ultimately understood him to mean had never had a reason to look at it.(c) In so far as the respondent sought to rely upon the content of what they described as his “Contract of Employment”, while he recognised that they had produced a document which bore to relate to him and to his employment, the copy which they provided was not signed neither by him nor by Mr Anderson on behalf of the respondent. The claimant submitted that he had not been given a copy of any such document when he commenced his employment.(d) In so far as the respondent’s relied upon the records, produced at pages R-37 to R-41, as vouching the various training courses received and completed by him, the claimant submitted that he had not received full training on the operation of machinery because he had entered employment, not in the conventional way, but rather through a trial in terms of which he was initially assisting his father who was an existing employee. He observed that his signatures where they appeared on the various training documents appeared a very similar one to each other. While accepting that that could be because he had signed them all, he equally speculated that it could be because someone else had signed them all.(e) In relation to his various decisions not to exercise his internal rights of appeal against any of the disciplinary sanctions applied to him, including in particular the decision to dismiss him on 29th of September 2023, the claimant submitted that he had just thought that it would be easier if he accepted the position rather than contesting it and making it a lot worse than it actually was.[47]As to why he had decided to make no efforts to find alternative employment, beyond the part time employment which he commenced on or about the 25th of January, he submitted that from the 14th of February 2024, being the date upon which he was assessed as medically fit to return to working, he had continued, from time to time, to experience some pain in his thumb from the injury.[48]The claimant had accepted in evidence that that was a conscious decision on his part not to seek additional or alternative employment such as would provide him with a similar income to that which he had received when working with the respondent. He had accepted in evidence that the 14th of February 2024, the date on which he was certified medically fit to return to working, would, in those circumstances, operate as a cut off point in respect of any continuing loss on his part.[49]The claimant separately confirmed that in the event of his complaint of Unfair Dismissal succeeding he did not, in any event, seek any financial remedy from the Tribunal. Respondent’s Reply[50]By way of limited reply, the respondent’s Director and representative denied that the claimant’s training records had in any sense been falsified by the respondent. The fact that the claimant’s signatures and initials appeared similar at each place in which they had been inserted on the documents, was equally consistent with the claimant having himself applied those signatures and initials. Regarding training, while recognising that the claimant’s entry into employment had not been by the conventional route taken by other employees, the respondent’s Director asserted that the claimant had been fully and adequately trained on the operation of the machine. There were only two individuals in the workforce who were authorised to operate the machine and the boiling fires. These were respectively the claimant and his father. The claimant had been trained in all aspects of the operation of the machine by his father, training for most of which the respondent’s Director had himself been present and witnessed, it being the case that he worked on the shop floor alongside the respondent’s employees on a daily basis in the manufacturing process. He submitted that, regardless of any dispute as to the extent of training received, the claimant had operated the machinery safely and without injury throughout his employment up until the date of the incident. The claimant was fully aware that he was not allowed to and ought not to put his hands near the moving parts of the machine when it was operating, as doing so would put him at risk of injury and also put his fellow employees at risk of injury. His doing so, which in the respondent’s Director’s assertion had been demonstrated clearly on the CCTV footage which he, along with the claimant’s supervisor and his fellow Director had viewed. That footage showed the claimant deliberately putting one hand into proximity with the moving parts while with the other hand switching the machine on, and thus causing his injury. That was gross misconduct for which ultimately the respondent determined to dismiss the claimant. Applicable Law, Discussion and Decision[51]There was no dispute between the parties as to the reason for the claimant’s dismissal, namely the claimant had been dismissed for reason of his conduct. Conduct is one of the potentially fair reasons set out in section 98(2) of the Employment Rights Act 1996 (“the ERA”) viz:- “98 General(1) ………(2) A reason falls within this sub section if it (a) ….. (b) relates to the conduct of the employee, …..”[52]In circumstances where an employee is dismissed for a potentially fair reason, in the instant case for reason of conduct, the issue of whether the dismissal falls to be regarded as unfair is regulated by the terms of section 98(4) of the ERA viz:- “(4) [where] the employer has fulfilled the requirements of sub section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[53]In so determining the issue of whether a dismissal which took place for a potentially fair reason, falls to be regarded as fair or unfair, it is not the function of the Tribunal to enquire into the facts surrounding the conduct such as to establish whether the claimant did or did not commit the conduct in question. Nor is it the function of the Tribunal to rehear a disciplinary hearing or, in the instant case, to hold a disciplinary hearing in circumstances where one did not occur. Nor must the Tribunal substitute its own decision for that of the employer. Rather, the function of the Tribunal is to judicially review the reasonableness of the employer’s actings in taking and acting upon a decision to dismiss the claimant, in accordance with the provisions of section 98(4) of the ERA.[54]The case of British Home Stores Limited v Burchell [1978] IRLR 379 EAT is authority for the proposition that where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair an Employment Tribunal has to decide whether the employer who discharged the employee on the ground of misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. This involves three elements:-(a) First, there must be established by the employer the fact of that belief; that the employer did believe it.(b) Second, it must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief, and,(c) Third, the employer, at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.[55]On the Findings in Fact which it has made, the Tribunal concluded that in so deciding to dismiss and in so dismissing the claimant, the respondent had satisfied the three part test set out in the case of British Home Stores Limited v Burchell.[56]While recognising that not every employer would necessarily have decided to dismiss the claimant, in the particular circumstances, the Tribunal was unable to conclude on the evidence presented, that no reasonable employer, in the circumstances, would have decided to dismiss the claimant. The decision to dismiss accordingly falls within the band of reasonable responses which was available to the respondent.[57]The Tribunal concludes, in the circumstances, that the respondent’s admitted dismissal of the claimant for the potentially fair reason of conduct, falls to be regarded as substantively fair in terms of section 98(4) of the Employment Rights Act 1996.[58]In relation to procedural unfairness, the Tribunal recognised that no formal disciplinary hearing was held. In cases of gross misconduct, however, where an employer forms the belief, upon reasonable grounds, that there is no real dispute on the facts and where it is clear that the misconduct is of a kind which goes to the root of the relationship between the employer and employee, the absence of such a formal disciplinary hearing need not fatally taint the decision to dismiss with unfairness. The procedural fairness of the decision falls to be regarded in the context of the overall procedure available and followed. In the instant case the respondent afforded the claimant a right of appeal which, had he exercised it, would have provided a vehicle by which any unfairness arising from the absence of a formal disciplinary hearing could have been cured. The claimant took a conscious decision not to exercise that right of appeal. In the circumstances, on the evidence presented and on the Findings in Fact made, the Tribunal is unable to conclude that in so dismissing the claimant the respondent’s failed to follow a fair procedure.[59]The claimant’s complaint of Unfair Dismissal is dismissed on its merits.[60]Standing the dismissal of the claim it is unnecessary for the Tribunal to make Findings in Fact regarding remedy. The Tribunal observes, however, that in light of the claimant’s acceptance that the 14th of February 2024 would have operated as a cut off point for any continuing loss and further his confirmation that he did not seek any financial remedy in the proceedings before the Employment Tribunal, let it be assumed the claim had been successful, no basic or compensatory award would have fallen to be made. IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Determination of the Tribunal in Case Number 4105574/2023, made in terms of Rule of Procedure 72(1), of Application, dated 7th August 2024, for Reconsideration of the Judgment of the Tribunal issued to Parties on 31st July 2024 Employment Judge J G d’Inverno Colin Mcdonald Claimant In Person Ross’s of Edinburgh Ltd Respondent Represented by: Mr J Anderson, Director
The Issues
[1]Judgment, dismissing, amongst others, the claimant’s complaint of Unfair Dismissal in terms of section 98(4), was issued to parties on 31st July 2024.[2]By email dated 7th August 2024 the claimant timeously made Application, in terms of Rule 71, for Reconsideration of the Judgment.[3]The Application of 7th August is in the following terms:- “Application for reconsideration On the 31st of July 2024 I Colin Mcdonald received the decision that my case had been thrown out due to the Judge being unable to decide whether my dismissal was fair or unfair, I believe that there was not enough evidence presented by the other party to come to that decision. CCTV footage was never shown of the incident and I had never written down my own account of what happened therefore the other party’s word was taken as gospel [sic]. If evidence had been shown this wouldn’t have been the case. There was also no original document shown, I also have further evidence for the Tribunal from another employer [sic employee?] that worked in the factory. I didn’t think this was needed to begin with as I was confident the correct evidence would be shown. Regards Colin.”[4]The Application falls to be construed as an Application for Reconsideration only of that part of the Judgment which dismissed the complaint of Unfair Dismissal.[5]The Tribunal respectfully considers that the claimant’s Application is misconceived in so far as it appears to proceed upon the statement contained in the first sentence:- “.. that my case had been thrown out due to the Judge being unable to decide whether my dismissal was unfair or not …”[6]Parties are referred to the Note of Reasons attached to the Tribunal’s Judgment issued on 31st July 2024 and in particular to the section “Applicable Law, Discussion and Decision”, and paragraphs 37 to 46 thereof.[7]In those paragraphs the Tribunal makes clear that it was able to and did decide that the dismissal fell to be regarded as both substantively and procedurally “fair” within the terms of section 98(4) of the Employment Rights Act 1996:- See paragraph 43, page 23 and 24, viz,:- “43 The Tribunal concludes in the circumstances that the respondent’s admitted dismissal of the claimant for the potentially fair reason of conduct, falls to be regarded as substantively fair in terms of section 98(4) of the Employment Rights Act 1996” and paragraph 44, page 24, lines 4 to 16 and lines 10 to 19:- “The procedural fairness of the decision falls to be regarded in the context of the overall procedure available and followed. In the instant case the respondent afforded the claimant a right of appeal which, had he exercised it would have provided a vehicle by which any unfairness arising from the absence of a formal disciplinary hearing could have been cured. The claimant took a conscious decision not to exercise that right of appeal. In the circumstances, on the evidence presented and on the Findings in Fact made, the Tribunal is unable to conclude that in so dismissing the claimant the respondents failed to follow a fair procedure” and “45. The claimant’s complaint of unfair dismissal is dismissed on its merits.”[8]Once a potentially fair reason for dismissal has been established, in the instant case it was never in dispute that the claimant was dismissed for reason of his conduct, the issue of whether or not a dismissal falls to be regarded as fair or unfair in terms of section 98(4) is an issue upon which the burden of proof is neutral. That is to say, it is no more for the respondent to disprove that the dismissal was fair than it is for the claimant to prove that it was unfair.[9]Parties are referred to paragraph 39 of the Note of Reasons attached to the Judgment, at page 22, lines 7 to 16:- “In so determining the issue of whether a dismissal, which took place for a potentially fair reason, falls to be regarded as fair or unfair, it is not the function of the Tribunal to enquire into the facts surrounding the conduct such as to establish whether the claimant did or did not commit the conduct in question. Nor is it the function of the Tribunal to rehear a disciplinary hearing or, in the instant case, to hold a disciplinary hearing in circumstances where one did not occur.” It does not have jurisdiction to do so, “Rather, the function of the Tribunal is to Judicially Review the reasonableness of the employer’s actings in taking and in acting upon a decision to dismiss the claimant, in accordance with the provisions of section 98(4) of the ERA.”[10]In so reviewing the reasonableness of the respondent’s actings the Tribunal concluded that those actings fell within the band of reasonable responses available to an employer in the circumstances. That is to say that while not all reasonable employers would have necessarily dismissed the claimant in the circumstances, some reasonable employers, acting reasonably, would have done so. The Tribunal accordingly concluded that the dismissal was fair.[11]In the last clause of the penultimate sentence of his email of 7th August the claimant states “, I also have further evidence for the Tribunal from another employer that worked in the factory”. The Tribunal proceeds on the assumption that the claimant in making out his Application intended the word ‘employer’, where it appears in that part of the sentence, to read ‘employee’.[12]In his Application the claimant does not say what that evidence is or what its effect potentially would have been upon any of the particular findings which the Tribunal has made (matters which the Tribunal found established on the evidence which was presented at Hearing). Separately, the claimant makes clear in his Application that that “further evidence”, whatever it may be, was evidence which was available to him in advance of and at the time of the Hearing and that he had decided not to put it before the Tribunal because he did not think that it would be needed.[13]The Public Policy considerations which flow from the principle of “Finality in Litigation”, do not permit a party, following conclusion of a Final Hearing and the issuing of a Judgment, to seek to reopen proceedings on the basis that they wish to introduce evidence which although available to them at the time of the Hearing they chose not to lead.[14]Upon giving the Application of 7th August initial consideration in terms of Rule 72(1), the Employment Judge whose Judgment the Judgment of the 31st July 2024 is, considered that there is no reasonable prospect, including no special reasons, of the original decision (the Judgment of 31st July) being varied or revoked in terms of the Application. The Application is accordingly refused in terms of Rule 72(1).