Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 9212/03

APPLICANT: Sean Weir

RESPONDENT: P F Copeland Limited

DECISION

The unanimous decision of the industrial tribunal is that the applicant was not unfairly dismissed. Accordingly the applicant's complaint is dismissed. No Order for costs is made in favour of the respondent against the applicant.

Appearances:

The applicant did not appear and was not represented.

The respondent was represented by Mr Peter Bloch, Engineering Employers Federation.

THE ISSUES

1. The matter was listed for hearing at 10.00am on 22 November 2004, Notices of Hearing having been dispatched to the respective parties on 21 October 2004. By 10.15 am on that date, the tribunal sat to hear the matter and noted that the applicant had not appeared nor was he represented. No explanation had been received for the applicant's non-appearance or non-representation. The tribunal proceeded to hear the matter as it is entitled to do on foot of Rule 11 of the Industrial Tribunals Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland ) 2004. The tribunal noted the content of the applicant's originating application and the respondent's notice of appearance thereto and heard a submission on the part of the respondent that the applicant's application ought properly to be dismissed by the tribunal without the hearing of any further evidence and on the merits. The tribunal's attention was drawn by the respondent's representative to the previous conduct of the proceedings and particularly to a Hearing for Directions which had been convened in the matter on 7 September 2004 at which the applicant did not appear and was not represented.

THE TRIBUNAL'S DETERMINATION

2. The proceedings had been duly convened and proper notice had been given to both parties. Notwithstanding this, the applicant was not in attendance nor was he represented at the hearing. No explanation had been afforded in respect of this. In these circumstances the tribunal is entitled to proceed with the matter as provided for by Schedule 1, Rule 11(3) of the Industrial Tribunals Rules of Procedure (2004). This states as follows:-

If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him pursuant to Rule 10(4) or (5) and any written answer furnished to the tribunal pursuant to Rule 4(3).

3. On foot of that Rule the tribunal gave consideration to the applicant's originating application and the respondent's notice of appearance thereto. The tribunal takes the view that it has been provided by the Rules with a measure of discretion in how it ought properly to deal with such cases where an applicant fails to appear. That discretion is contained in Rule 11(3). The tribunal also notes the case of Roberts –v- Skelmersdale College [2004] IRLR 69 where the Court of Appeal in England held that when an applicant fails to attend or to be represented at an Employment Tribunal hearing, the equivalent Rules of Procedure to Rule 11(3) of the Northern Ireland Rules does not impose upon the tribunal any duty of its own motion to investigate the case that is before it, nor does it impose a duty on it to be satisfied that, on the merits, the respondent to a case has established a good defence to the claim of the absent applicant. The Rule in question confers on tribunals a very wide discretion; the tribunal may adjourn the hearing, may dismiss the application, or may dispose of it in some other way.
4. Accordingly, in this case the tribunal is entitled to exercise its discretion to dismiss the applicant's application without having to investigate further the evidence and the merits of the case, having properly paid heed to in Rule 11(3).
5. The tribunal took note of Rule 9 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 which states that the overriding objective in the Rules is to enable tribunals to deal with cases justly. Dealing with a case justly includes, so far as practicable:-

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate to the complexity of the issues, and

(d) ensuring that it is dealt with expeditiously and fairly. In the interpretation of that overriding objective, the tribunal felt that it was appropriate to exercise its discretion in this instance to reach a finding without further investigation of the evidence and the merits of the case, the tribunal having considered the documents referred in Rule 11(3).

6. On that basis, the tribunal finds that the applicant's complaint is not well-founded and the complaint is dismissed by the tribunal.
7. The tribunal heard an application for costs on the part of the respondent's representative. The representative referred the tribunal to the Hearing for Directions of that took place on 7 September 2004 and to his application for costs on that occasion, when the Chairman took the view that the issue of costs ought to be properly reserved to the full hearing. The representative repeated his application for costs in respect of that hearing and also applied for costs in regard to the instant hearing. In support of the application, the representative's contention was that costs ought properly to be awarded by the tribunal on foot of Rule 14(1) of the Rules of Procedure as the conduct of the applicant in regard to both hearings had been unreasonable.
10. The tribunal considered the application for costs. Rule 14 of the Industrial Tribunals Rules of Procedure (2004) provides that where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party' representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or a party's actions in bringing the proceedings has been misconceived, the tribunal shall consider making, and if it so decides, may make – an Order containing an award against that party in respect of the costs incurred by the other party. The representative's submission was that the actions of the applicant had been unreasonable.
11. In this case the tribunal is not satisfied, upon the information before it, that the actions of the applicant in bringing the proceedings or in conducting the proceedings were unreasonable to the degree that would suggest that costs ought properly to be awarded. For that reason the tribunal declines to order costs in this case in favour of the respondent and against the applicant.

Chairman:

Date and place of hearing: 22 November 2004, Belfast

Date decision recorded in register and issued to parties: