Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 00141/07FET; 01735/07;

01953/07

CLAIMANT: Sarah Gillespie

RESPONDENT: Assisi Animal Sanctuary

Constitution of Tribunal:

Chairman: Mr Buggy

Members: Mrs Adams

Mr McCrossen

DECISION

The unanimous decision of the Tribunal is as follows. All of the claimant's claims are dismissed. Any respondent's counterclaim is also dismissed.

Appearances:

The claimant was not present and was not represented.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Macauley & Ritchie, Solicitors.

REASONS

1. The respondent has confirmed that it does not wish to pursue any counterclaim against the claimant.
2. In her claim forms, the claimant made allegations of various instances of unwarranted mistreatment for which, she asserted, the respondent is legally responsible. In particular, the claimant alleges that the respondent has been guilty of important breaches of her contract of employment and that the respondent's actions were influenced by bias against her because she had, or was perceived to have, an interest in witchcraft.
3. In these proceedings, the claimant complains of unlawful religious discrimination and of unfair (constructive) dismissal. Those claims are based on the factual allegations described in the last paragraph above.
4. Because the claimant was not present, we had no sworn testimony from the claimant. However, we did have sworn testimony from Mr Brian Bingham, the Chairman of the respondent charity.
5. We accepted that Mr Bingham's testimony was truthful. He denied that the claimant had been subjected to any unwarranted mistreatment whatsoever.
6. Therefore, the claimant's claims of religious discrimination fail. On the same basis, the claimant's claim of constructive dismissal must also be dismissed.

The decision to proceed in the absence of the claimant

7. Rule 23(5) of the Fair Employment Tribunal Rules 2005 provides as follows:-

"(5) If a party fails to attend or to be represented (for the purpose of conducting the party's case at the hearing under rule 22) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date."

8. We decided to dispose of the proceedings in the absence of the claimant, and not to adjourn the hearing, against the following background and in the following circumstances. (In disposing of these proceedings, we took full account of all the information in the tribunal's possession which had been made available by the parties).
9. On behalf of the claimant, the Office of the Tribunals was notified that her address was at 8 Johnston Park, Carrowdore, Co Down. The Office has never been notified of any change of an address. All relevant correspondence from the Office, in connection with these proceedings, has been sent to the Johnston Park address.
10. Notices of Hearing in these proceedings was sent to that address on 11 June 2008. The Notices were contained in an envelope which bore the logo of the Office of the Tribunals. The envelope was subsequently returned. When it was returned, it bore a Royal Mail label and the box for "addressee has gone away" was ticked on that label.
11. On 8 July, and again on 16 July, correspondence was sent by the Office to the claimant, at the Johnston Park address, in envelopes which did not bear the Office logo. Those envelopes were not returned.
12. Ms Fearon, Solicitor, of Macauley and Ritchie has informed us that, on 31 July 2008, her firm sent a letter to the claimant at the Johnston Park address; that the envelope bore the logo of Macauley & Ritchie; and that this letter was not returned.
13. On 5 August 2008 and on 7 August 2008, the Office of the Tribunals sent correspondence to the claimant at the Johnston Park address. On each occasion, the relevant envelope bore the logo of the Office. On each occasion, the relevant correspondence was returned. On each occasion, the returned correspondence bore a Royal Mail label. On each occasion, the box for "addressee has gone away" had been ticked.
14. We considered those facts in light of the applicable legal principles. According to Rule 60(1) of the 2005 Rules, any document to be sent under the Rules can be sent by post. According to Rule 60(2), where a document has been sent by post to the proper address, that document must, unless the contrary is proved, be taken to have been received by the party to whom it is addressed. (In the present context, the proper address is the claimant's address as specified in the claim form. See Rule 60(4)(e) of the Rules).
15. So, Rule 60(2) establishes a rebuttable presumption that a document sent by post to a claimant, at the claimant's last known address, is deemed to have been received by her unless the contrary is proved.
16. So, if we are satisfied that the document was sent to the claimant at the Johnston Park address, we must regard the document as having been properly served unless we are affirmatively satisfied (unless we are satisfied on the balance of probabilities) that the claimant never received it.
17. Having had regard to the varied outcomes in respect of correspondence sent to the Johnston Park address, and have noted that the claimant has never suggested to the Office that she has changed address, we cannot be satisfied, on the balance of probabilities, that the claimant did not receive the Notices of Hearing. Accordingly, because of the effect of the "deeming" presumption which is contained within Rule 60(2) we must conclude that the claimant did indeed receive the Notice of Hearing.

Chairman:

Date: 5 September 2008 Belfast.

Date decision recorded in register and issued to parties: