Industrial Tribunals Northern Ireland Decisions
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URL: http://www.bailii.org/nie/cases/NIIT/2008/01613.html
Cite as: [2008] NIIT 1613_7IT, [2008] NIIT 01613_07IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 01613/07
CLAIMANT: Aqdas Nabili
RESPONDENT: Southern Health & Social Care Trust
DECISION ON A PRE-HEARING REVIEW
The respondent’s application (for the claim to be struck out on the grounds that it has not been actively pursued) is dismissed.
The claimant must comply with an order for the provision of additional information (as specified below) by 5 January 2009.
Constitution of tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
The claimant was not present and was not represented.
The respondent was represented by Ms C McClean, Solicitor, of Central Services Agency.
REASONS
In these proceedings, the claimant makes complicated claims in respect of allegations of unpaid wages, unpaid holiday leave, unpaid travel expenses and non-payment of on-call payments. At any main hearing, several senior staff of the respondent would have to be present for the purpose of giving evidence.
As noted above, the claimant was not present or represented at this pre-hearing review (“PHR”).
As I told Ms McClean during the course of this PHR, the claimant had telephoned Mr Andrew Quinn (a tribunal clerk) on 4 September 2008 and told him that she would be unavailable for any tribunal proceedings for at least six months until at least the middle of March 2009. According to the claimant, that unavailability was for personal reasons and also for job reasons, but mainly for personal reasons. The relevant clerk, Mr Andrew Quinn, asked the claimant to put that communication in writing, but she has not done so.
The background to this PHR
The background to this PHR is as follows.
Originally, the claimant was represented by a Sheffield firm of solicitors. They came off record on 29 January 2008.
Originally, the main hearing of these proceedings had been scheduled for 9 November 2007.
However, by agreement, that main hearing was adjourned, pending the outcome of an internal grievance procedure which the claimant was at that time pursuing.
By agreement, the hearing date was rescheduled for 11 February 2008.
The claimant’s solicitors came off record on 29 January 2008. In those circumstances the claimant asked for a postponement of the main hearing. That application was granted.
The main hearing was rescheduled for 23 April 2008.
In an email dated 14 April 2008, the claimant asked for a postponement of the main hearing. She said that due to her “very tight schedule of work”, she had had no time to find a suitable solicitor to represent her and said that she was requesting annual leave in order to find a legal advisor and, as soon as this had happened, she would inform the tribunal.
That application for adjournment was opposed by the respondent.
In support of her April postponement request, the claimant provided some information in respect of competing work commitments (which according to the claimant, made it inappropriate or impracticable for her to attend the scheduled main hearing in April).
On 22 April, the parties were notified that, as a response to that letter, the hearing listed for 23 April 2008 had been adjourned. However, the Vice President directed the claimant to provide documentary evidence of several assertions which the claimant had made in support of her request for postponement of the April hearing.
Nothing was heard from the claimant. On 13 May, the claimant was reminded of the necessity to comply with the relevant direction.
On 29 May, the claimant was given a further 14 days to reply. The letter of 29 May included the following paragraph:
“If no reply is received, it will be assumed that you do not wish to continue with your claim and a formal Notice will be issued informing you that the claim will be struck out for failure to actively pursue it”.
On 23 June 2008, the Office of the Industrial Tribunals wrote to the claimant to inform her that the time to respond had been extended for a further 14 days and that, if no written response was received, a notice informing her that the claim may be struck out would be issued.
On 8 July 2008, a notice was sent to the claimant in the following terms:
“Take Notice that a Chairman intends to strike out your claim on the ground that it has not been actively pursued unless you give reasons in writing why your claim should not be struck out on or before 5 August 2008.”
The claimant did not give any reasons in writing. However, as I informed Ms McClean during this PHR, the claimant telephoned the Secretary of the Tribunals on 11 July 2008.
On that occasion, she said that she could not provide all the information requested in previous correspondence; but had written to the organisers to obtain information about a course; they had not responded, however the information was already accessible on their website. She told the Secretary that she wanted the Office to understand that she was trying to co-operate fully but was experiencing difficulties in providing all the information requested. The Secretary told her to send whatever information she already had and to provide an explanation for the information that she had not yet obtained as soon as possible. She agreed to do that by fax on either Wednesday or Thursday, 16th or 17th July. But no documents were sent to her during July 2008.
On 12 August 2008, some documents were faxed to the tribunal by the claimant. The documents were accompanied by a covering note which was in the following terms:
“Please find the paper re my APLS course DFM examination and my interview as you requested. I sent some more pages by email. Please let me know if you want me to post them to you too”.
However, the documents faxed with that letter had consisted only of a recruitment vacancy, information with regard to interview and confirmation that the claimant was permitted to sit examination. According to a letter sent on 18 August 2008, by Ms Zoe McMaster (a tribunal clerk), no further documents were received via email as stated on the claimant’s fax cover sheet.
A Case Management Discussion (“CMD”) in the case was scheduled for Friday 5 September 2008.
As already noted above, the claimant rang Mr Andrew Quinn on 4 September (the day before the scheduled CMD). Details of that conversation have already been mentioned above at paragraph 3.
That CMD was postponed and, instead, this PHR was arranged.
The strike-out application
The purpose of this PHR was to consider the respondent’s request that the tribunal strike out the claim (on the ground that the claim has not been actively pursued).
During this PHR, Ms McClean urged me to strike out the case, pursuant to Rule 18(7)(d) of the Industrial Tribunals Rules of Procedure 2005 (“the Rules”), for failure to actively pursue.
As Ms McClean made clear, the respondent considers the claimant to have acted inappropriately in these proceedings, by failing to pursue the issues vigorously. There had been a failure to comply with the precise terms of the Vice President’s direction of April 2008. The claimant had not complied with the terms of the “Unless Notice” (see paragraph 19 above), by failing to provide specific details in writing. There had been a failure on the part of the claimant to respond to the respondent’s notices for discovery and for additional information, both dated 30 January 2008.
My conclusions on the strike-out application
Ms McClean vigorously and eloquently made every point which could reasonably be made, on behalf of the respondent, in support of this PHR application. However, I have decided that the application to strike out must be dismissed. In arriving at that conclusion, I have firstly taken account of the fact that, in my view, there is no reason to believe that any failure to actively pursue (on the part of the claimant) has, to any significant extent, diminished the prospect of achieving a fair hearing of this claim. Secondly, although the failure to comply with the April direction in respect of the provision of information was serious, some relevant information has subsequently been provided, and, in any event, the non-compliance does not affect the respondent’s ability to prepare for any main hearing. Thirdly, the claimant was in breach of any order by failing to comply with request for discovery or with a request for additional information (although one would expect a reasonable party to comply with any reasonable request for discovery/additional information).
The discovery and additional information applications
The January 2008 Notice for Discovery is attached, marked “N1”. (See paragraph 28 above).
In managing these proceedings, I am obliged to deal with this case justly. Dealing with this case justly includes dealing with the case in ways which are proportionate, and it also includes having regard to the aim of saving expense. Against that background, I have decided to make an order requiring discovery of all the documents sought in the Notice for Discovery. Such discovery/inspection must be provided to the respondent’s representative no later than 5 January 2009.
The respondent’s January 2008 “Notice for Additional Information” is annexed to this record of proceedings, marked “N2”. (See paragraph 28 above).
I decline to make an order for the provision of the information sought at paragraph 10 of that Notice.
However, having had regard to the interests of proportionality and minimisation of expense, I have decided to make an order requiring the claimant to provide all of the information specified at points 1-9 of that Notice.
Once again having had regard to the interests of proportionality and minimisation of expense, I have decided to require the claimant to also provide the following additional information:
Will the claimant be unavailable to participate in any tribunal hearings over the coming months?
If so, when will she cease to be unavailable?
The claimant must also provide details of all the reasons for any such unavailability.
Chairman:
Date and place of hearing: 19 November 2008, at Belfast.
Date decision recorded in register and issued to parties:
I
N1
AND FAIR EMPLOYMENT TRIBUNAL
CASE REF NO. 1613/07
BETWEEN:
AQDAS NABILI
Claimant
AND
SOUTHERN HEALTH AND SOCIAL SERVICES TRUST
Respondent
NOTICE FOR DISCOVERY
TAKE NOTICE that the Respondent requires the Claimant to make discovery of any documents which are or have been in her possession, custody or power relating to any matter in question or relevant to this application to the Industrial Tribunal. Without prejudice to the generality of the foregoing the Respondent requires the Claimant to provide the following inter alia:
1. Copies of all documentation in electronic copy or hard form in the Claimant’s possession, power and control which relates to the subject matter of the Claimant’s proceedings to include specifically the following:
(i) a copy of all documentation relating to the Claimant’s allegations which are the subject matter of these proceedings.
(ii) A copy of all documentation relating to or exchanged between the Claimant and the Respondent regarding the complaints which are the subject matter of these proceedings.
Copies of all documentation which substantiates and/or relates to the Claimant’s loss and damage which she asserts has been incurred as a result of the Respondent which is the subject matter of these proceedings.
AND
FURTHER TAKE NOTE that if the Claimant fails to provide the aforesaid
documents within 7 days of this Notice, an immediate application will
be made to the Industrial Tribunals and Fair Employthent Tribunal to
compel same. No further
correspondence will be entered into and use will be made of the terms of this notice to fix the Claimant with the cost of and identical to any such application which may be made.
DATED
this 30th
day of January 2008
Signed:
_________________________
A MAGINNESS ESQ
Director of
Legal ‘ervices
Central Services Agency
2 Franklin
BELFAST
BT2 8DQ
To:
The Claimant
Dr Aqdas Nabili
47
Greystead Road
London
SE23 3SE
2notdis
l b4
I N2
AND
FAIR EMPLOYMENT
TRIBUNAL
BETWEEN:
AQDAS NABILI
Claimant
AND
SOUTHERN HEALTH AND SOCIAL SERVICES TRUST
Respondent
CASE REF
NO. 1613/07
NOTICE FOR ADDITIONAL INFORMATION
TAKE NOTICE that you are hereby required to furnish to the Respondent’s representative within 7 days of service of this Notice upon you the following Additional Information arising out of this Application to the Industrial Tribunal:
Please provide precise details of how and in what way it is alleged that the Respondent has breached the Claimant’s Contract of Employment.
Please provide a precise breakdown of the amount that is being claimed for unpaid wages.
Please specify the periods claimed for unpaid wages.
Please specify precisely how and in what way the Claimant is entitled to unpaid holiday leave.
Specify the precise amount of leave claimed and over what period.
Specify precisely the amount of unpaid travel expenses claimed.
Please clarify how and in what way the claim for unpaid travel expenses arises.
Specify precisely the amount claimed by virtue of the non-payment of on-call payments.
Clarify precisely over what periods the amounts claimed in Paragraph 8 above are claimed.
Confirm the identity of any witnesses the Claimant proposes to call in support of her complaint before the Tribunal.
AND FURTHER TAKE NOTICE that if
the Claimant fails to provide the aforesaid Additional Information
within 7 days of the date of this Notice an immediate application
will be made to the Industrial Tribunal and Fair Employment Tribunal
for an Order
staying the proceedings pending the delivery of the same and, upon the Hearing of such an application, use will be made of this Notice for the purpose of fixing you with the costs of and incidental thereto.
Dated
this 30th
day of January 2008
Signed:
_______________________
A Maginness Esq
Director of Legal
Services
Central Services Agency
2
Franklin Street
BELFAST BT2 8DQ
Solicitor for the Defendant
TO:
the Claimant
Dr Aqdas Nabili
47
Greystead Road
LONDON
SE23 3SF
notai
l 6