Highlights of Noteworthy Decisions

Decision 96 21 I
08/02/2021
A. Somerville - S. Sahay - G. Carlino
  • Adjournment (peremptory hearing date)
  • Three week rule (witnesses)
  • Hearing (conduct of hearing)

The employer appealed a decision of the Appeals Resolution Officer granting the worker entitlement for an accident in June 2018.

The Panel dealt with two preliminary matters.
The employer's Confirmation of Appeal stated that the employer planned to have witnesses at the hearing, but that their identity was to be confirmed. The employer agreed to provide the names of the witnesses and "will say" statements as soon as possible, and not later than three weeks before the hearing. The Tribunal did not receive this information.
At the hearing, the employer stated that it wished to call four witnesses, two of whom had witnessed the incident in issue. Given that the issue in this appeal was the occurrence of the accident, the Panel found that the evidence from these witnesses was relevant. The Panel granted the adjournment, but peremptory on the employer.
The worker's Confirmation of Appeal indicated that the worker was going to testify at the hearing concerning the circumstances of the accident. Tribunal case law concerning the issue of who conducts the examination-in-chief of the worker in an employer appeal indicates that the Tribunal takes a flexible approach: sometimes the examination-in-chief is conducted by the worker's representative, sometimes by the employer's representative and sometimes by the Tribunal adjudicators. The Panel suggested that the representatives arrange among themselves who will conduct the examination-in-chief of the worker. If the representatives are unable to reach an agreement, the representatives should notify the Tribunal no later than three weeks before the hearing.