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Judgment No. 4474


The application for review is dismissed.


The complainant filed an application to review Judgment 4360.

Judgment keywords


application for review; evidence; due process; complaint dismissed

Consideration 3


The essence of the argument is that the admission of the evidence was not authorised. However, the relevant question is whether it was prohibited. A legal aphorism deployed in some domestic legal systems is that rules of procedure should be a servant and not a master. It is apt to apply to this Tribunal. Ordinarily a judicial tribunal ought to be able to adopt procedures in a given case to meet the overriding objective of determining a fair, lawful and just outcome. Unless a particular procedure is prohibited expressly or by necessary implication by a normative legal document binding the judicial tribunal or by entrenched case law, the tribunal can on proper grounds adopt, as a matter of discretionary assessment, procedures to achieve that overriding objective. This Tribunal did so in the present case.



Consideration 4


The fresh evidence adduced in the surrejoinder was [...] deployed by the Tribunal to assess and decide what relief was appropriate. Necessarily that decision must be made by reference to facts and circumstances known at the time of the assessment, which may include facts and circumstances that were not known when the decision to dismiss was made. Very commonly this would entail an assessment, in a case of unlawful dismissal, whether an order of reinstatement was appropriate. That, in turn, often raises for consideration the passage of time between the dismissal and when a remedy is being considered, including the possible prejudice to the organisation if reinstatement were ordered. While this case was extremely unusual if not extraordinary, it simply cannot be suggested that the fresh evidence in this case was not relevant to remedy. It was and that was the use made of it by the Tribunal.


effective date; evidence; surrejoinder; reinstatement

Last updated: 03.03.2022 ^ top