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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Barry v Alexander Rankin & Son [2004] NIIT 1347_03 (01 September 2004)
URL: http://www.bailii.org/nie/cases/NIIT/2004/1347_03.html
Cite as: [2004] NIIT 1347_3, [2004] NIIT 1347_03
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- These reasons are given in summary form.
- The applicant claimed pay in lieu of notice and wrongful dismissal (breach of contract) in his originating application of 15 May 2003. The respondent denied the applicant's claims.
- A Chairman directed that a preliminary issue be heard to determine whether the originating application should be amended to include a claim of unfair dismissal.
- On the hearing date a panel member was not in attendance and the parties consented to the preliminary issue being determined by a two person tribunal.
- The tribunal made the following findings:-
CASE REF: 1347/03
APPLICANT: Desmond Barry
RESPONDENT: Alexander Rankin & Son
The unanimous decision of the tribunal is that the originating application of 15 May 2003 be amended to add a claim for unfair dismissal.
Appearances:
The applicant was represented by Mr Acheson, of counsel, instructed by Anthony McCormick, Solicitor
The respondent was represented by Ms Moran, of counsel, instructed by John J McNally, Solicitor.
By letter of 12 January 2004 the applicant sought to amend his originating application by adding a claim for unfair dismissal. The respondent, by letter of 19 January 2004 opposed the proposed amendment.
(a) The respondent employed the applicant as a labourer from January 1997 until the 21 February 2003 when it dismissed him by reason of redundancy.
(b) The applicant consulted with the Citizen's Advice Bureau. Unfair dismissal was discussed at the consultation. The Citizen's Advice Bureau prepared the originating application of 15 May 2003.
(c) The originating application does not make a claim for unfair dismissal. The Citizen's Advice Bureau had written to the respondent on 28 February 2003 setting out the applicant's claim in which it was alleged his dismissal was unfair. No explanation was advanced for the absence of a claim for unfair dismissal in the originating application.
(d) In September 2003 the applicant's solicitors came on record and they wrote on 22 September 2003 to the respondent's solicitors and The Office of Industrial Tribunals and the Fair Employment Tribunal intimating their intention to apply to amend the originating application by adding a claim for unfair dismissal. At the applicant's request the scheduled hearing for 25 September 2003 was postponed with the consent of the respondent.
(e) The applicant applied by letter to The Office of Industrial Tribunals and the Fair Employment Tribunal to amend the originating application by adding a claim for unfair dismissal on 12 January 2004.
(f) By letter of 19 January 2004 the respondent opposed the proposed amendment.
(g) The hearing date fixed for 29 January 2004 was postponed as the scheduled venue at Limavady was cancelled.
(h) No explanation was advanced why the application to amend took from 22 September 2003 to 12 January 2004.
(i) Following the approach set out in Selkent Bus Co. Ltd –v- Moore [1996] ICR 836 the tribunal considered this proposed amendment as a "change of label" application and that the time limits did not apply.
(j) As the prejudice to the applicant in refusing this amendment is significantly greater than the prejudice to the respondent the tribunal allows the amendment and adds a claim for unfair dismissal.
(k) Accordingly this application will proceed to hearing and will be listed for one day.
Chairman:
Date and place of hearing:
Date decision recorded in register and issued to parties: