Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 154/07

CLAIMANT: Clemens Gerstenkorn

RESPONDENT: Belfast Health & Social Services Trust

DECISION ON A PRE-HEARING REVIEW

The Tribunal finds that unless the claimant complies with the Order for Additional Information made on 14 September 2007 by 13 December 2007 the claimant's claim will be struck out without further notice or hearing.

Constitution of Tribunal:

Chairman (sitting alone): Mr B Greene

Appearances:

The claimant was represented by Mr P Donaghy, solicitor, of Patrick C Donaghy Solicitors.

The respondent was represented by F O'Reilly, of counsel, instructed by the Director of Legal Services.

Sources of Evidence

1. The parties did not adduce any oral evidence. The Tribunal had regard to the pleadings in this matter and the submission of the parties.

Claim and Defence

2. The claimant claimed unfair dismissal and race discrimination. The respondent, the employer of the claimant, resisted the claimant's claims. The respondent issued separate Notices for Further and Better Particulars in relation to the claim for unfair dismissal and for race discrimination. The claimant's claim for race discrimination was rejected as the claimant had not complied with the statutory grievance procedure. Thereafter the respondent withdrew its Notice for Further and Better Particulars in relation to the race discrimination claim.
3. Despite efforts to get replies none were forthcoming and eventually on 14 September 2007 the Tribunal made an Order in favour of the respondent against the claimant to provide replies to the Notice for Further and Better Particulars within 21 days of the 14 September 2007. That Order was not complied with and the respondent now is seeking to strike out the claimant's claim.

The Issues

The matter was listed to deal with the following issues:-

(i) Whether the claimant's claims should be struck out on any of the following grounds;-

(a) that the manner in which the proceedings have been conducted by or on behalf of the claimant has been unreasonable;

(b) that the claims have not been actively pursued; or

(c) for the non compliance with an Order.

4. Findings of Fact

The following matters appeared from the record or were not in dispute;-

(i) On the 9 January 2007 the claimant presented a claim to the Office of Industrial Tribunals in which he claimed unfair dismissal and race discrimination against the respondent.

(ii) By letter of 30 January 2007 the Office of the Tribunals rejected the claimant's claim for race discrimination as he had not complied with the statutory grievance procedure. This rejection was not appealed.

(iii) On 13 April 2007 the respondent issued separate Notices for Further and Better Particulars in relation to the claimant's claim for unfair dismissal and race discrimination.

(iv) By letter of 16 May 2007 the respondent formally withdrew its Notice for Further and Better Particulars in relation to the race discrimination claim only. It reminded the claimant's solicitor that replies to the Notice for Further and Better Particulars in relation to the unfair dismissal claim were outstanding.

(v) The respondent sought a Case Management Discussion to deal with the outstanding replies to its Notice for Further and Better Particulars on 13 April 2007.

(vi) A Case Management Discussion to deal with the respondent's request was scheduled for 15 June 2007.

(vii) At the Case Management Discussion on 15 June 2007 the claimant agreed to provide replies to the respondent's Notice for Further and Better Particulars by 29 June 2007. In light of that undertaking the respondent did not proceed with its claim for an Order to compel replies to its Notice for Further and Better Particulars.

(viii) By letter of 28 June 2007 the claimant's solicitor wrote to the Office of the Tribunals seeking a further 2 weeks in which to provide replies to the respondent's Notice for Further and Better Particulars. That letter was passed to the respondent's solicitor.

(ix) The respondent by letter confirmed that it would agree to the extension and would expect to receive the replies no later than 16 July 2007.

(x) A further Case Management Discussion was scheduled for 24 August 2007 in order to deal with the claimant's failure to provide replies to the respondent's Notice for Further and Better Particulars.

(xi) At the Case Management Discussion on 24 August 2007 the claimant was not in attendance nor was he represented. Following a phone-call from the Office of the Tribunals the claimant's solicitor intimated that he had not received notification of the Case Management Discussion. Accordingly the Tribunal postponed the Case Management Discussion and re-listed it for 14 September 2007.

(xii) At the re-convened Case Management Discussion on 14 September 2007 the claimant did not appear nor was he represented. The Tribunal was satisfied that there was no good reason to postpone the Case Management Discussion, in the absence of the claimant, and the Case Management Discussion proceeded. The Tribunal made an Order to compel the claimant to provide replies to the respondent's Notice for Further and Better Particulars dated 13 April 2007. The claimant was to comply with that request within 21 days from 14 September 2007.

(xiii) On 22 October 2007 the respondent received a letter from the claimant's solicitor furnishing replies to particulars. However, the replies were in relation to the rejected race discrimination claim and not to the unfair dismissal claim.

(xiv) As of today's date replies to the respondent's Notice for Further and Better Particulars, dated 13 April 2007, have not been furnished by the claimant.

(xv) The respondent now seeks to have the claimant's claim struck out. It relies on Rule 18(7) (b), (c) and (d) of the Industrial Tribunal Rules 2005. Mr O'Reilly pointed out to the Tribunal that the claim under Rule 18 (7)(d) was added by the Tribunal following the last Case Management Discussion.

(xvi) Mr Donaghy indicated to the Tribunal that the claimant currently lives in Germany. He also has a hearing before the GMC in London commencing on 4 February 2008. Currently he is actively pursuing High Court proceedings in relation to the matter which is the subject of his claim to the Industrial Tribunals. He has instructed senior counsel and has taken advice from senior counsel. Mr Donaghy advised the Tribunal that he anticipated the Statement of Claim would be issued shortly. Mr Donaghy indicated to the Tribunal that the claimant was actively involved in his case. He did however accept that he had not provided the replies to the Notice for Further and Better Particulars of 13 April 2007. Mr Donaghy shared with the Tribunal the views of senior counsel that the Industrial Tribunal proceedings should be adjourned pending the outcome of the High Court proceedings. Mr Donaghy also indicated that he had been in recent contact with junior counsel and anticipated, should the Tribunal not strike out the case, that replies to particulars can be furnished quickly. Mr Donaghy accepted that the questions in the Notice for Further and Better Particulars were not particularly onerous. He intimated that the information had now been provided by the claimant and that it was now possible for the claimant's legal advisers to prepare and serve replies to the respondent's Notice for Further and Better Particulars of 13 April 2007.

5. The Law

(i) A Chairman may strike out the claim if he is satisfied that the claim is scandalous, vexatious or misconceived or the manner in which the proceedings have been conducted by or on behalf of the claimant is scandalous, vexatious or the claim has not been actively pursued. (Rule 18(7) of the Industrial Tribunals Rules of Procedure 2005).

(ii) Rule 13(2) of the 2005 Rules of Procedure give authority to a Chairman to make an Order providing that unless the Order of the Tribunal is complied with by a certain date that the claim may be struck out without further consideration of the proceedings or the need to give notice under Rule 19 or to hold a pre-hearing review.

6. Application of the Law and the Findings of Facts to the Issues

(i) At a Case Management Discussion on 14 September 2007 the Industrial Tribunal Ordered that the claimant answer the respondent's Notice for Further and Better Particulars dated 13 April 2007 by 5 October 2007.

(ii) The claimant has not furnished replies to the said notice as of 29 November 2007.

(iii) Whilst the Tribunal accepts that the claimant and his solicitors may have been involved in a number of matters on behalf of the claimant which appear to be serious matters no good reason was advanced as to why the replies to particulars had not been furnished hitherto.

(iv) Mr Donaghy accepted that the questions in the Notice for Further and Better Particulars were not particularly onerous. He also accepted that he is now in procession of the information to provide replies.

(v) The Tribunal is satisfied that there is no good reason why these replies have not been furnished by now. The Tribunal is further satisfied that the claimant and his representative had not acted reasonably in their conduct of this matter.

(vi) The Tribunal is further satisfied that the respondent will not be able to get a fair hearing without answers to the questions in its Notice for Further and Better Particulars of 13 April 2007.

(vii) The Tribunal directs that unless the claimant serves on the respondent replies to the respondent's Notice for Further and Better Particulars of 13 April 2007 by 13 December 2007 the claimant's claim will be struck out with further notice or hearing.

Chairman:

Date and Place of Hearing: 29 November 2007, Belfast

Date decision recorded and issue to the parties: