CASE REF: 83/04FET
CLAIMANT: Peter Stewart Tazzioli
RESPONDENT: Land of Leather
The decision of the tribunal is that:-
Constitution of Tribunal:
Chairman: Mr N Drennan QC (Chairman sitting alone)
The claimant did not appear and was unrepresented.
The respondent was represented by Ms A Hughes of First Business Support – on the telephone link using the telephone conference facilities.
This Decision was recorded in the register and issued to the parties on 26 April 2006. The said Order was not complied with within the extended period granted by the Chairman as set out in her Decision on the Pre-Hearing Review.
Malpass & Greene of Lisburn, telephone contact was made with the said firm, who stated that they were not on record for the claimant; but they also stated that the claimant had moved house recently and could not be contacted by phone. The Solicitors supplied a new address for the claimant, namely 37 Copperfields, Upper Ballinderry, Lisburn BT28 2RW. By letter dated 13 June 2006, the tribunal wrote to the claimant at the address provided by the said solicitors enclosing inter alia, the previous Notice of Strike Out hearing for 21 June 2006, the letter sent by the tribunal on 30 May 2006 and correspondence received from the respondent's representative, in relation to their request for a postponement of hearing on 21 June 2006 and seeking any comments from the claimant in relation to the said postponement. The claimant did not respond to the said correspondence; but it also was not returned by Royal Mail. The said hearing on 21 June 2006 was postponed. Notice of the said postponement was sent to the claimant at the said new address by Notice dated 26 June 2006. Again, the said Notice of postponement was not returned by Royal Mail.
This power, as the Employment Tribunal reminded itself, is a draconian power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its sides of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it is made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is proportionate response".
For the reasons set out above, I am satisfied that in the continuing absence of the said Replies, a fair trial is not possible in this matter.
Further, I am satisfied that the claimant has conducted the said proceedings unreasonably. Despite the Chairman at the previous hearing giving him the further chance to make the Replies, he has failed to do so, albeit he was made fully aware of the consequences of not making a Reply to the said Order. He has not appeared at this hearing, nor has he responded to any correspondence, in relation to this hearing, nor given any reason why he has failed, despite the extension of time granted at the previous hearing, to reply to the said Order.
Having so decided it was then necessary for me to consider whether, in the above circumstances, it would be a proportionate response to make an "Unless" Order in this matter, rather than decide to Strike Out the claimant's claim. However, I came to the conclusion, in the particular circumstances of this case, that such an "Unless" Order would not be an appropriate proportionate response. In essence, the Chairman at the Pre-Hearing Review made an "Unless" Order when she gave the claimant a further extension of time to Reply to the said Order and explained, as set out in the said Decision, the consequences of any failure to comply with the said Order, as amended by the said extension of time. I am not satisfied that it would be appropriate to make an Unless Order, in the above circumstances and which would, in effect, merely repeat what took place at the previous Pre-Hearing Review. I think that there has to come a time when further chances cannot be given to a claimant, who has ignored previous chances given. I have come to the conclusion that, although to Strike Out the claim is a draconian remedy, in the particular circumstances of this case and in light of what was decided at the previous Pre-Hearing Review, to Strike Out the claim would be a proportionate response.
Date and place of hearing: 13 September 2006, Belfast.
Date decision recorded in register and issued to parties: