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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Hearty v South Eastern Health and Socia... [2010] NIFET 00115_09FET (03 February 2010)
URL: http://www.bailii.org/nie/cases/NIFET/2010/00115_09FET.html
Cite as: [2010] NIFET 115_9FET, [2010] NIFET 00115_09FET
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THE FAIR EMPLOYMENT TRIBUNAL
CASE REF: 115/09FET
CLAIMANT: Martin Hearty
RESPONDENT: South Eastern Health and Social Care Trust
DECISION ON A PRE HEARING REVIEW
The decision of the Tribunal is that unless the claimant complies with the Order for Additional Information dated 25 November 2009 by 18 February 2010, his claim to the Fair Employment Tribunal shall be struck out for failure to comply with the Order, without further consideration of the proceedings or the need to give any further notice or hold any Hearing.
Constitution of Tribunal:
President (sitting alone): Eileen McBride
Appearances:
The claimant appeared in person.
The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by the Directorate of Legal Services.
Reasons
1. The issue to be determined at this Pre Hearing Review was whether the claimant’s claim should be struck out for failure to comply with the Order for Additional Information dated 25 November 2009.
THE LAW
2. Rule 17(7)(e) of the Fair Employment Tribunal Rules of Procedure 2005 provides:-
“Subject to paragraph (6) a chairman or tribunal may make an Order –
….
(e) striking out a claim or response (or part of one) for non-compliance with an
Order or practice direction.”
Rule 12(2) of the Fair Employment Tribunal Rules of Procedure provides:-
“An Order may also provide that unless the Order is complied with the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under Rule 18 or hold a pre hearing review or hearing under Rule 22.”
Regulation 3 of the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005 requires the tribunal and chairman to give effect to the overriding objective of the Regulations which is deal with cases justly when exercising the above power. Regulation 3(2) provides:-
“Dealing with a case justly includes, so far as practicable –
(a) ensuring that the parties are on an equal footing;
(b) dealing with the cases in ways which are proportionate to the complexity or importance of the issue;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense.”
3. Having considered the documentation together with the representations of Mr Mulqueen and the claimant, I am satisfied that the Order has not been complied with by the claimant and that without compliance the respondent will not be in a position to know the case it has to meet in relation to the claimant’s allegations and will not therefore be able to prepare to meet the claimant’s case. In those circumstances I am satisfied that without compliance with the Order by the claimant, the respondent cannot have a fair Hearing.
However, I am satisfied that if the Orders are now complied with, albeit late, the respondent will be able to defend the case and a fair Hearing will still be possible.
4. If, however, the claimant persists in failing to comply with the Order, then a fair Hearing will not be possible. Therefore to do justice between the parties and to ensure that a fair Hearing can still take place, I order that unless the claimant complies with the Order for Additional Information dated 25 November 2009 by 18 February 2010, his claim shall be struck out, in accordance with Rule 12(2) of the Fair Employment Tribunal Rules of Procedure 2005 without further consideration of the proceedings or the need to give the claimant any further notice or to hold a further Pre Hearing Review or any other hearing.
5. Mr Mulqueen indicated that the respondent was seeking an Order for Costs in respect of this Pre Hearing Review and in respect of the Case Management Discussion which was listed for 14 January 2010 and which the claimant did not attend. That Case Management Discussion had been listed to identify the precise legal and main factual issues in the case. A copy of the record of proceedings of that Case Management Discussion is also attached to this decision.
6. A further Case Management Discussion will take place on Tuesday 2 March 2010 at 9.30 a.m. to consider:-
(1) the respondent’s application for costs;
(2) identification of the precise legal and main factual issues in the case;
(3) whether the use of witness statements are still appropriate; and
(4) if so, whether the case can still proceed to Hearing from 12-30 April 2010.
______________________________________
E McBride
President
Date and place of hearing: 2 February 2010, Belfast
Date decision recorded in register and issued to parties:
FAIR EMPLOYMENT TRIBUNAL
CASE MANAGEMENT DISCUSSION
CASE REF: 115/O9FET
CLAIMANT: Martin Hearty
RESPONDENT: South Eastern Health and Social Care Trust
DATE OF HEARING: 14 January 2010
REPRESENTATIVES OF PARTIES:
CLAIMANT BY: The claimant did not appear and was not represented.
RESPONDENT BY: The respondent was represented by Mr Mulqueen, Barrister-at-Law, instructed by Ms McClean of the Directorate of Legal Services.
__________________________________________________________________
Record of Proceedings
__________________________________________________________________
1. The purpose of the Case Management Discussion was to identify the precise legal and main factual issues in the case.
2. The claimant did not appear, was not represented and has made no contact with the Tribunal office nor with the respondent’s representative since the last hearing on 23 November 2009.
3. Mr Mulqueen outlined that the claimant has not provided replies to the Order for Additional Information which was granted at the CMD on 23 November 2009 and was served on the claimant by letter of 21 December 2009. Mr Mulqueen sought a strike-out of the claimant’s claim or in the alternative an Unless Order giving the claimant a further short period to comply with the Order as otherwise his claim would be struck-out.
4. A Strike-Out application and an Unless Order can only be considered at a PreHearing Review under Rule 18. I therefore listed the Pre-Hearing Review for 28 January 2010 at lOam. The Tribunal on that date will hear both parties on the application to strike-out the claimant’s claim for failure to comply with the Order for Additional Information.
Chairman:
Date:
19th January
2010