Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 220/07

CLAIMANT: Paul Quinn

RESPONDENT: Castle Bay Diesel Limited

DECISION

The unanimous decision of the tribunal is that the claimant's complaints are not made out and these are dismissed by the tribunal, without further order. The tribunal, further, Orders the claimant to pay to the respondent costs in the sum of £500.00.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr Adair

Mr Grant

Appearances:

The claimant appeared and represented himself on the first day of proceedings, 9 January 2008, but did not appear and was not represented on the subsequent hearing day, 1 February 2008.

The respondent was represented by Mr C Hagan, Barrister-at-Law, instructed by Faloon & Toal, Solicitors.

REASONS

1. By originating claim dated 2 February 2007 and received by the Office of the Tribunals on 5 February 2007, the claimant made a number of complaints. The respondent entered a response thereto. Following a decision on a Pre-Hearing Review dated 1 August 2007 and a decision on review dated 17 October 2007 in the matter made by a Chairman of tribunals, those of the claims originally made by the claimant which still require to be disposed of by this tribunal were, firstly, breach of contract, secondly, unlawful deduction of wages, and thirdly non-payment of pay in respect of annual leave. These three complaints were defended by the respondent.
2. On the first day of hearing in the matter, that which took place on 9 January 2008 at Omagh, the claimant appeared in person and he commenced giving his oral testimony to the tribunal. On account of certain issues arising from that testimony, the Chairman on behalf of the tribunal indicated that it would be preferable if the claimant were to consider seeking seek legal advice. After affording a period of time in order to permit the claimant to make further enquiries concerning the seeking of legal advice, the claimant indicated to the tribunal that he was unable to secure the necessary legal advice on that day. He therefore applied to adjourn the proceedings. The respondent's representative indicated that there was no objection to that application, in view of the circumstances, save that the respondent's position in respect of the costs of the adjournment was to be the subject of a further application at a future date.
3. The proceedings were duly adjourned and were reconvened for a hearing listed on 1 February 2008, at Belfast. The tribunal sat at 10.05 am on that date and there was no attendance by or on behalf of the claimant at that time. The tribunal rose in order to afford further time to the claimant to be in attendance. The tribunal then sat at 10.30am in order to review the position and the claimant was still not in attendance or represented. The tribunal again rose for a short period. At 10.50am the tribunal sat again and there was still no attendance by nor any representation on behalf of the claimant. No information was before the tribunal as to why that was the case.
4. The tribunal was cognisant of Rule 27(5) of the Tribunals Rules of Procedure ("the Rules") contained in the first schedule to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. That Rule 27(5) provides that if a party fails to attend or to be represented (for the purpose of conducting the party's case at the hearing under Rule 26) at the time and place fixed for such a hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date. Rule 27(6) of the Rules provides that if a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in Rule 27(5) it shall first consider any information in its possession which has been made available to it by the parties.
5. There being no information as to why the claimant was not present or represented before the tribunal, the tribunal then proceeded to consider the documentation which was before it, including the claimant's claim form (insofar as any issues contained therein were still relevant and requiring to be dealt with by the tribunal) and the response thereto and the determinations made by the Chairmen sitting in the matter on the earlier dates. The tribunal also heard oral evidence from Mrs Mary Quinn of the respondent company in order to clarify some of the documentation which was before the tribunal.
6. On foot of the information that was before it, the tribunal proceeded to reach a determination on the issues, these being, firstly, whether or not the respondent had breached the claimant's contract of employment in any respect, secondly, whether or not the respondent had made unlawful deductions of wages and, finally, whether or not the respondent had failed to pay paid annual leave to the claimant.
7. The tribunal believes that it is reasonable in such a case as this to expect any claimant to attend or to be represented before the tribunal in order to elaborate on the details of the claim, failing which the tribunal will be denied the opportunity to gain the most basic information required potentially to find in favour of the claimant. The tribunal takes the view that it has been provided by the Rules with a measure of discretion in such matters as to whether or not any case might be adjourned or otherwise dealt with in the manner provided for by the Rules. The tribunal, further, notes the case of Roberts -v- Skelmersdale College [2004] IRLR 69 where the Court of Appeal in England held that when (as in this case) a claimant fails to attend or to be represented at a tribunal hearing, the rules (being the equivalent of the Rules in the jurisdiction of this tribunal) do not impose upon the tribunal any duty of its own motion to investigate the case that is before it, nor do they impose a duty on the tribunal to be satisfied that, on the merits, the respondents to such a case have established a good defence to the claim of the absent claimant. Thus the tribunal has afforded to it such discretion that it may adjourn the hearing or may dismiss the claim or may dispose of it in some other way. In this case, the tribunal saw no good reason for adjourning the case.
8. On the information and evidence that was before it, the tribunal saw nothing to support any alleged breach of contract on the part of the respondent. The respondent's contention was that the claimant had been dismissed summarily on grounds of gross misconduct. In these circumstances no notice or pay in lieu of notice would be applicable. Observing the respondent's case, the tribunal noted that no case had been made out in opposition to that by or on behalf of the claimant as to why the respondent was not entitled, under the stated circumstances, to dismiss the claimant summarily, in such a manner and for good cause, without notice or pay in lieu thereof. Therefore there is nothing to support the breach of contract claim.
9. The claimant had claimed deductions of wages under Article 45 of the Employment Rights (Northern Ireland) Order 1996. The tribunal carefully considered the evidence in that regard and heard from Mrs Quinn who elaborated upon wages details, including holiday pay. The tribunal is satisfied on the documents and other evidence that the claimant was indeed overpaid wages amounting to some three days' wages at the effective date of termination of this employment. It is also the case, on the evidence, that the claimant did not work in the last week of employment and that he provided no sickness certificates to the respondent in respect of his absence. Therefore on the evidence available the tribunal is entirely satisfied that no wages would properly fall due and payable to the claimant by the respondent.
10. Accordingly, the claimant's complaints are dismissed by the tribunal.
11. The respondent's representative applied for costs, indicating that the proceedings on the first occasion were adjourned on the claimant's application as an issue had arisen in the course of the claimant's evidence upon which the claimant wished to take legal advice. The representative submitted that no contact whatsoever had been made on the claimant's part, or on the part of any representative on his behalf, to indicate that the claimant would not be attending or represented before this tribunal on the adjourned date, 1 February 2008. Accordingly, on account of the adjournment the claimant's representative was of necessity required to attend on an additional day, without proper cause.
12. Rule 40 of the Rules governs the matter of costs. Rule 40(1) provides that a tribunal or Chairman may make a costs order when on the application of a party it has adjourned a hearing. The costs order may be made against that party as respects any costs incurred or any allowances paid as a result of the adjournment. Rule 40(2) and (3) provides that a tribunal shall consider making a costs order where the party has in bringing the proceedings or in conducting the proceedings acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings has been misconceived. Rule 41 provides that the tribunal may specify a sum not exceeding £10,000.00 in respect of costs and that the tribunal may have regard to the paying party's ability to pay when considering whether costs orders shall be made.
13. In the matter the respondent's representative submitted that the costs of the day were quantified at a figure of £500.00 (no VAT) and that such costs were incurred directly as a result of the claimant's application to adjourn the proceedings on the first day. In this instance, the tribunal is of the unanimous view that the additional costs, which were quantified at a figure of £500.00 (no VAT), were incurred by the respondent directly as a result of the claimant's application to adjourn the proceedings on the first day of the hearing of the matter. If the claimant had not been of a mind to attend the second day of proceedings, he could quite easily have communicated that fact to the respondent's solicitors or to the Office of Tribunals, thereby avoiding the second day's costs being incurred by the respondent. The claimant did not do so. He thereby acted in an unreasonable manner. Thereby, as a direct result, the costs were incurred by the respondent. The tribunal sees no good reason why all of the costs claimed should not be the subject of an Order on the part of the Tribunal against the claimant and in favour of the respondent.
14. Accordingly, on foot of Rule 40 of the Rules the tribunal Orders the claimant to pay to the respondent the sum of £500.00 in respect of costs. No further or other Order is made by the tribunal.

Chairman:

Date and place of hearing: 9 January 2008, Omagh and 1 February 2008, Belfast.

Date decision recorded in register and issued to parties: