- Reconsideration (procedural error) (notice)
The employer requested a reconsideration of Decision No. 1115/22 on the basis that it did not receive notice of the worker's appeal, and, therefore, did not have an opportunity to participate in the appeal. The employer submitted that there was an error of natural justice and/or procedural fairness as they did not have a record of receiving notice of the worker's appeal.
The Chair denied the reconsideration request as the Tribunal's threshold test for granting a reconsideration request had not been met. There was no defect in the administrative process as the Tribunal had followed the established procedure for providing notice to the employer of the appeal through two pieces of correspondence that were sent to the employer's correct mailing address.The Chair found that the Tribunal did comply with the applicable law and practice in notifying the employer of this appeal. Although the employer genuinely did not have a record of receiving notice of this appeal, the Chair reasoned that the error, if any, most likely occurred in the employer's handling of its mail. However, it was established that the Tribunal: a) followed the appropriate process under the statute and applicable Practice Directions; b) used the employer's correct mailing address; c) did not receive the correspondence returned as undeliverable; and, d) sent at least two pieces of correspondence to the employer at the correct mailing address prior to the hearing. As long as notice was provided to the employer, the Vice-Chair's decision to proceed with the appeal did not constitute an error. A reconsideration request requires a weighing of competing interests, including the importance of decisions being final and the prejudice to a party of a decision being re-opened. The Chair found that the principle of finality would be undermined by allowing this reconsideration request. The approach taken by the Federal Court in cases such as Halder was relevant. Once it is shown that the Tribunal sent the notice of appeal to a respondent in accordance with the WSIA and accepted Tribunal practices, the risk of non-delivery transfers to the respondent. In the Chair's view, the Tribunal's practice of sending an additional letter to a respondent after non-response to the original notice protects against the potentially harsh consequences that may result from the risk that the initial notice of appeal may go astray. In line with Tribunal case law, the Chair accepted that the Tribunal may exercise its discretion under section 129 of the WSIA to consider whether it is appropriate to re-open the appeal due to other substantive errors or factors related to the administration of justice. The Chair found that there was no defect in the original decision or other extraordinary circumstances that would warrant the exercise of the Tribunal's discretion to reconsider the appeal. Decision No. 1115/22 met the hallmarks of reasonableness in that it was justified, intelligible and transparent. The Vice-Chair reasonably applied the principles of causation in assessing the evidence and explained the reasons for finding as she did. Furthermore, if the decision were to be re-opened, it would require re-opening both issues before the Tribunal in the appeal, not just the aspect of the decision with which the employer disagrees.