Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/157_09IT.html
Cite as: [2009] NIIT 157_09IT, [2009] NIIT 157_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 157/09

CLAIMANT: Robert Hammond

RESPONDENT: Dumfries Freight Limited

DECISION

The decision of the tribunal is that:-

on a review of a decision issued by letter of 3 April 2009 not to accept the respondent company’s response, that the said decision be confirmed;

(ii) on the substantive hearing of the claimant’s claim, that the respondent company do pay to him the sum of £495.00 in respect of unauthorised deductions from his wages.

Constitution of Tribunal:

Chairman (sitting alone): Mr D Buchanan

Appearances:

The claimant appeared in person.

The respondent company was represented by Mr P Lutton, its managing director.

At the outset of the hearing, the name of the respondent was amended to that now shown to reflect the fact that it is a limited company.

The claimant alleges that he suffered unlawful deductions from his wages in respect of work performed by him during his employment with the respondent company from 8 – 12 September 2008. The amount which he alleges is owing is £475.00 in wages, together with expenses.

A Notice of Hearing was issued on 3 February 2009 for a hearing on 6 April 2009.

4.	(i)	On 30 March 2009, a response was received from the respondent company.

	(ii)	By a letter from the Office of the Tribunals issued on 3 April 2009, the respondent company was informed that its response had been rejected. The letter stated:-

“The response was due to be presented to the Office of the Tribunals by 24 February 2009, but it was not received until 30 March 2009, it is therefore rejected as it has been received outside the time-limit set out in Rule 4(1) of Schedule 1 of the Industrial Tribunals Rules of Procedure 2005.”

	(iii)	The letter of 3 April 2009 informed the respondent company of its right to seek a review of the decision set out at sub-paragraph (ii) above, and stated that any application for a review would be heard at the outset of the substantive hearing listed for 6 April 2009.

	(iv)	By letter faxed to the tribunal on 3 April 2009 the respondent company sought a review of the decision. The letter stated:-

“The reason for the review of this decision is on the grounds of an administrative error by the [R]oyal [M]ail.

The claim form was posted to you within the 28 days as stated in the response form. However the envelope was returned to our office on 27/03/09 marked as addressee no longer at this address.

The response form was then personally delivered to Killymeal House on Sunday 29/03/09. The envelope was left with the security guard who offered to leave it into Killymeal House (ie the tribunal building) on 30/03/09.”

		(The security guard presumably did this, for, as indicated, the response was rejected on 30 March 2009.)

5.	(i)	The tribunal dealt first with the respondent company’s application for a review of the rejection of its response. The parties were informed that the tribunal’s Rules of Procedure provided that 14 days notice of a review hearing should normally be given. Neither wished to return on a later day, and they both waived the usual notice requirement so that the matter could proceed.

	(ii)	In order to determine the respondent company’s review application, I heard evidence from Mr Lutton, its managing director. Regrettably, I found this evidence unsatisfactory and unconvincing for the following reasons:-

Mr Lutton stated that he posted the response to the former tribunal centre at Long Bridge House, Waring Street, in mid-February 2009. However, that building was still in use for hearings and for administrative purposes until 27 February 2009 and was open to staff on 28 February 2009. The move to Killymeal House took place on 2 March 2009. A response form sent in mid-February should have arrived well in advance of any of these dates.

Even if the response form were delayed, arrangements were in place for mail to be re-directed to Killymeal House by Royal Mail.

Mr Lutton gave evidence that he received the envelope back from Royal Mail in mid-March. The envelope was marked ‘addressee gone away’. He states that he threw away this envelope, and sent the response in a new envelope. In his correspondence with, and oral evidence to, the tribunal he showed an awareness of the importance of the 28 day time-limit for providing a response, and I find it extremely surprising that he did not retain a document which could have supported his case.

The response signed by Mr Lutton was dated (on his evidence) 26/02/09. However, it appears that the figures ‘02’ have been superimposed on what was previously ‘03’. Mr Lutton could not explain this to my satisfaction.

In any event the date 26/02/09 is later than mid-February when Mr Lutton states he posted the response to Long Bridge House, and Mr Lutton accepted that even on this date, the response was out of time. However, the respondent company has always made the case that its response was presented timeously, and that its late receipt was the fault of Royal Mail.

In these circumstances, there is no credible material before me which would enable me to revoke the decision not to accept the response – I therefore confirm that decision, which has the consequence that the respondent company is not entitled to take any part in the substantive hearing.

I proceeded to the substantive hearing. Mr Hammond, the claimant, gave evidence and I am satisfied from that evidence that at the time his employment ended, there had been unlawful deductions from his wages totalling £495.00. This is made of £475.00 in respect of wages, and £20.00 in expenses (vehicle fees incurred by him going through the Mersey Tunnel).

I therefore order that the respondent company do pay to the claimant the sum of £495.00 in respect of unauthorised deductions from his wages.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 6 April 2009, Belfast

Date decision recorded in register and issued to parties:

4.

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