Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/6740_09IT.html
Cite as: [2009] NIIT 6740_9IT, [2009] NIIT 6740_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6740/09

CLAIMANT: Mariusz Koziol

RESPONDENT: Rutledge Joblink

DECISION

The decision of the Tribunal is that the claimant’s claim for redundancy is rejected.

Constitution of Tribunal:

Chairman (sitting alone): Ms Sheils

Appearances:

The claimant did not appear and was not represented.

The respondents were represented by Mr Edward Lane, Human Resource Manager, of Rutledge Joblink and Mrs Agnes Murphy, Property Manager, of Rutledge Joblink.

The Claim and the Response

1. The claimant lodged a claim form on 7 August 2009 claiming that he had been made redundant by the respondents. The claimant stated that he had been given four weeks verbal notice from Mr Jonathan Doherty, Director of Rutledge Joblink and he was claiming redundancy payment from the “Redundancy Payment Service.

2. The respondents lodged a response on 30 September 2009 denying that the claimant had been made redundant and stated that the claimant had given notice that he was leaving his employment to return to Poland.

3. Ms Natasha Warcholak, a Polish interpreter, attended the hearing. This was on the basis of the request for an interpreter on the claimant’s claim form.

Non appearance of the Claimant

4. The claimant did not turn up at the hearing. Accordingly the Tribunal considered the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, Rule 27(5) which states “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 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) goes on to state “If a Tribunal wishes to dismiss a dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties”.

5. The Tribunal decided to dispose of the case in the absence of the claimant. In reaching this decision the Tribunal examined information in its possession which included the Office file and evidence from Mr Lane and Ms Murphy.

6. The Office file made it clear that the Notice of Hearing had been sent to the claimant on 16 September 2009 and that this had been returned to the Office on 22 September 2009 “marked addressee has gone away.” On receiving this, the Office telephoned the claimant on 8 October 2009, spoke to the claimant and told him that he should forward to the Office his new address. In this telephone call the claimant was advised that his case was listed for hearing on 9 November 2009. The claimant queried if he was required to attend this hearing and the Office advised the claimant that he was so required, in order to give evidence. The claimant advised the Office that he was at a new postal address in Armagh but that he could not remember the number of his new house. During this telephone call the claimant was given an email address at the Office and he was told to forward his new postal address as soon as possible.

7. Having received no email from the claimant the Office contacted the claimant again on 13 October 2009 and asked the claimant again to send in his new postal address as a matter of urgency. The claimant stated that he would do so that evening as he was, at the time of the telephone call, currently travelling. The Office confirmed the content of this telephone conversation in an email sent to the claimant on the same date. The email went on to advise the claimant to forward his new postal address by 12 noon on Wednesday 14 October 2009. The Office received no confirmation from the claimant of his new postal address, by this date, nor by any date thereafter.

8. The Office continued to ring the claimant approximately six times in week commencing 21 October 2009. Eventually, on 26 October 2009, the Office forwarded an email to the claimant containing as attachments the Notice of Hearing and a copy the Response from the respondent. The Office received no confirmation of receipt of this email from the claimant.

9. The Tribunal heard from Mr Johnson from the Labour Relations Agency. Mr Johnson confirmed that he had been speaking to the claimant on 23 October 2009 but that he was not in a position to confirm whether the claimant was aware of the date of the hearing. Mr Johnson emailed the claimant and advised him to contact the Office to tell them his new address. The claimant replied to Mr Johnson to say that he had sent the Office the details of his new address. Mr Johnson confirmed that the email he used to write to the claimant and the one which the claimant used to write to Mr Johnson was the same email address held on file and used by the Office.

10. Under Rule 60 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 it states:

“(1) Any notice given or document sent under these Rules shall (unless the Chairman or Tribunal orders otherwise) be in writing and may be given or sent:

(a) by post;

(b) by fax or other means of electronic communication;

(c) through a document exchange in accordance with

paragraph (6); or

(d) by personal delivery.

(2) Where a notice or document has been given or sent in accordance with paragraph (1), that notice or document shall, unless the contrary is proved, be taken to have been received by the party to whom it is addressed…”

11. Accordingly, in view of the evidence before the Tribunal, to the effect that the Notice of Hearing and respondent’s Response were scanned and attached to an email sent to the claimant on 26 October 2009 and to the same email address used by the Labour Relations Agency and answered to the Agency by the claimant, the Tribunal decided that the claimant had become aware of the date of today’s hearing. In these circumstances, the Tribunal decided to dispose of the case in the absence of the claimant.

The Hearing

Sources of Evidence

12. The Tribunal heard evidence from Mr Edward Lane and Ms Agnes Murphy. The Tribunal was furnished with a number of payslips belonging to the claimant.

13. The Tribunal found the following facts proved on a balance of probabilities:

(1) The claimant started work with the respondents as a handyman on 1 July 2004 on a permanent contract. This contract ended in June 2005 when Mr Koziol left the respondent’s employment to go back to Poland. There was no copy of the claimant’s contract of employment available.

(2) The respondents stated that the claimant had been a good worker so when, in August 2005, it came to the attention of the respondents that the claimant was returning from Poland he was contacted by phone to see if he would be interested in coming back to work with them

(3) The claimant agreed to return to work for the respondents and was put on a temporary contract in August 2005. The respondents stated that the claimant had been put on a temporary contract and was required to complete timesheets everyday because he had already left the employment and they were unclear how long he would stay this second time. In any event, according to the respondents, the claimant was happy to complete the timesheets and be a temporary employee.

(4) The claimant continued working for the respondents from August 2005 until June 2009. In May 2009 the claimant advised the respondents that as his seven year old son would soon be completing his First Communion he would be taking his family back to Poland thereafter. The respondents stated that the claimant believed that religious education was better here in Northern Ireland than in Poland but that when the boy had completed his First Communion the family would be returning to Poland. The claimant gave the respondents a months notice on 3 May 2009 and he worked his notice up until 5 June 2009. Thereafter the claimant left his employment and neither Ms Murphy nor Mr Lane had spoken to the claimant since.

(5) In response to the statement in the claimant’s claim form that he had had a conversation with Mr Jonathan Doherty, Managing Director of Rutledge Joblink, Ms Murphy stated that she did not accept that the claimant would have had any direct dealings with Mr Doherty and his dealings with the company had always been through her. In any event Ms Murphy also stated that she had spoken to Mr Doherty and that he had told her that he had never had any such conversation with the claimant.

The Law

14. Article 170 of the Employment Rights (Northern Ireland) Order 1996 provides that an employer shall pay a redundancy payment to any employee of his if that employee:

(a) is dismissed by the employer by reason of redundancy; or

(b) is eligible for a redundancy payment by reason of being laid off or kept on short time.

The Conclusions

15. The Tribunal found that there was no evidence that the claimant had been dismissed by reason of redundancy or had been laid off or kept on short time and accordingly no redundancy payment could be paid to him.

Chairman:

Date and place of hearing: 9 November 2009, Belfast.

Date decision recorded in register and issued to parties:

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