Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2006/410_05.html
Cite as: [2006] NIIT 410_5, [2006] NIIT 410_05

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THE INDUSTRIAL TRIBUNALS

CASE REF: 410/05

CLAIMANT: Colin Hughes

RESPONDENT: Alexandra Kirkpatrick T/A Ellie May's Restaurant

DECISION

The unanimous decision of the tribunal is that time be extended for entering the respondent's appearance and that the complaints of unfair dismissal, sex discrimination, and failure to provide a written statement of reasons for dismissal be dismissed.

Constitution of Tribunal:

Chairman: S A Crothers

Panel Members: Miss Mulligan

Mr Copeland

Appearances:

The claimant did not appear and was not represented.

The respondent was represented by Mr E Todd, Barrister-at-Law, instructed by Conway, Todd and Co, Solicitors.

The claimant did not appear and was not represented before the tribunal. In accordance with Rule 11 (3) of the Rules contained within Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 ("The Rules") the tribunal decided to dispose of the claimants application by considering the claimants originating application and hearing evidence from the respondent, pursuant to allowing an extension of time for the respondent to enter an appearance.

The issues for the tribunal were as follows:-

(i) Whether the respondent should be allowed an extension of time for entering an appearance.

(ii) Pursuant to a decision in relation to issue 1 above, the manner in which the tribunal should deal with the matter under the Rule 11 (3) of the Rules and whether, if the tribunal decided to dispose of the application in accordance with Rule 11 (3), the claimant was unfairly dismissed, was unlawfully discriminated against on the grounds of sex, and was entitled to a written statement of reasons for dismissal under Articles 124 and 125 of the Employment Rights (NI) Order 1996 ("the Order").

3. The tribunal, having analysed the evidence before it in relation to issue 1 above and

taking into account the relevant documentation, makes the following findings of fact:-

(i) The respondent Mrs Kirkpatrick received a copy of the claimant's application form to the tribunal which was presented on the 24 February 2005. She engaged the advice of a neighbour, Mr McKernan who assisted her in completing the notice of appearance in accordance with Rule 3 of the Rules. The tribunal accepts the respondent's evidence that she genuinely believed that an appearance had been presented to the tribunal office by Mr McKernan before the end of March 2005. An extension of time was granted by the tribunal for entering such an appearance until the 14 April 2005. However the tribunal accepts the respondent's evidence that she requested an extension of time by faxed correspondence to the tribunal dated 27 March 2005 in order to obtain legal advice.

(ii) On the 13 November 2006 the claimant and her adviser were alerted to the fact that an appearance had not been entered and the claimants solicitors wrote to the tribunal on the 24 November 2006 referring to documentation which had been uncovered by the respondent including what appeared to have been an original notice of appearance. The relevant notice of appearance was presented to the tribunal office on the 27 November 2006.

(iii) The tribunal, having considered the findings of fact in relation to issue 1, and having regard to Rule 17 of the Rules, decided to grant an extension of time to the respondent for entering an appearance, and further decided to dispose of the application in accordance with Rule 11.

In relation to the remainder of issue 2, the tribunal having analysed the evidence before it, including oral evidence from Mrs Kirkpatrick and Mr Moran, the Head Chef, made the following findings of fact:-

(i) The claimant was employed from the 10 March 2004 until the 30 December 2004, being the effective date of termination of his employment.

(ii) The claimant had a history of drug taking, bad time keeping and an untidy appearance. He had received a final written warning from Mr Moran, the Head Chef, on the 9 November 2004 for smoking illegal substances on the premises during working hours. The correspondence to the claimant stated that "this behaviour will not be tolerated and I have no option but to give you this final and written warning. If any such behaviour happens again it will end in instant dismissal". The tribunal accepts Mr Moran's evidence that he had a conversation with the claimant at the time of the final written warning by telling him that if he stepped out of line again regarding the issue of drugs, his timekeeping, his appearance or in respect of anything which was not befitting he would have to let him go.

(iii) The claimant's case was that he had been unfairly dismissed because of taking his entitlement to paternity pay. His girlfriend had given birth to a child on the 21 December 2004. Mr Moran had spoken to the claimant on the 23 December and told him that he could have the 24 and 25 December off work but was needed on Boxing Day the 26 December 2004. Both Mr Moran and Mrs Kirkpatrick had indicated to him that after Boxing Day he would be granted paternity leave. However despite strenuous efforts to contact him by telephone, the claimant did not appear for work on the 26 December 2004. The tribunal accepts that the manager, Christopher McDonald, did not 'clear' the claimant for paternity leave on the 23 December 2004 as alleged by the claimant. Having attempted to contact him further but without success, the claimant came to the respondent's premises on the 30 December 2004 to claim wages for paternity leave. Mr Moran discussed his behaviour with him and enquired as to why he had not made contact by telephone. Mr Moran referred to the final written warning in light of what had happened over the Christmas period. He stated to the claimant that this was his "last chance, that's it, I have to let you go".

The law in relation to issue 2 is governed by the relevant provisions of part XI of the Order. The right to a statement of written reasons for dismissal is governed by Articles 124 and 125 of the Order.

Having analysed the evidence and applied the principles of law to the findings of fact the tribunal concludes:-

(1) The reason for dismissal was misconduct. The claimant had not been continuously employed for a period of not less than one year ending with the effective date of termination and therefore the tribunal does not have jurisdiction to hear his complaint of unfair dismissal.

(2) By virtue of Article 124 (3) of the Order the tribunal has no jurisdiction to deal with the issue of statement of reasons for dismissal as the claimant was not continuously employed for a period of not less than one year ending with the effective date of termination.

(3) There was no evidence before the tribunal to found any allegation of sex discrimination in accordance with the relevant legislation.

The tribunal therefore dismisses the complaints of unfair dismissal, sex discrimination, and the application for a written statement of reasons for dismissal.

Chairman:

Date and place of hearing: 7 December 2006, Belfast

Date decision recorded in register and issued to parties: