Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/1626_10IT.html
Cite as: [2010] NIIT 1626_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1626/10

CLAIMANT: Shannon De Groot

RESPONDENT: Craft Training

DECISION

The decision of the tribunal is that the respondent is not permitted to file a late response and that the hearing is adjourned pending an application for a review.

Constitution of Tribunal:

Chairman: Mr I Wimpress

Members: Mrs M Wright

Mr A Crawford

Appearances:

The claimant was represented by Mr Eamonn McCann.

The respondent was represented by Mr Mark McEvoy, Barrister-at-Law, instructed by Copeland McCaffrey, Solicitors.

1. In a claim form dated 21 June 2010 the claimant brought claims of unfair dismissal and constructive dismissal arising from the termination of her employment with the respondent on 8 March 2010. The claim form was filed in the tribunal office on 22 June 2010. In answer to question 6.4 in the claim form as to whether she had put all or part of her complaint in writing to the respondent the claimant replied that she was unaware of her rights or of procedures.

2. On 29 June 2009 the tribunal office sent a letter to the respondent at the address provided by the claimant in her claim form, 3-5 London Street, Derry, enclosing a copy of the claim form together with instructions as to how to respond. At paragraph 4 of the tribunal's letter it stated that if no response was received by 27 July 2010 and no extension of time was agreed by a chairman, the respondent would not be entitled to resist the claim and it would proceed as if no response to the claim had been presented and that a chairman may enter a default judgment to determine the claim without a hearing if the chairman considered it appropriate to do so. The letter also stated that an application for an extension must be made within 28 days of the date of the letter.

3. The respondent did not respond to the claim or for an extension of time within the prescribed 28 day period for so doing and no application for an extension of time was made.

4. On 15 July 2010 the tribunal office sent a Notice of Hearing to the claimant, her representative and to the respondent again to the address at 3-5 London Street, Derry. The hearing date was 19 October 2010. A default judgment was not made in this case.

5. On 14 October 2010, Ms Laura Nealis emailed the tribunal office. Ms Nealis advised that she was the owner of Craft Training whose head office was at Mopack Business Complex, Ballycoleman Road, Strabane. Ms Nealis went on to state that she had been contacted by the claimant's representative who had requested documentation in relation to the claimant for the tribunal hearing. Ms Nealis stated that she was unaware of the tribunal proceedings and asked to be contacted immediately about same. This email was followed up by further contact with the tribunal office by Mr Seamus Nealis on 15 October 2010 who advised that he knew nothing about the case. The tribunal clerk checked the address given in the case file and was informed by Mr Nealis that 3-5 London Street, Derry was an old address. The clerk advised Mr Nealis to write to the tribunal office and request all relevant paperwork. On the same day Mr Nealis sent a letter by fax to the tribunal office and requested a postponement of the hearing on the following grounds-

"Craft did not operate from London Street since 27 September 2010

No notice was provided to myself despite the claimant and her representative using our head office at Unit A, Mopack Business Complex, Ballycoleman Road, Strabane for any correspondence.

No date to begin agreed by myself"

Mr Nealis went on to ask that his request be given urgent attention as he had every intention of responding to the claim.

6. On 18 October 2010 Copeland McCaffrey, solicitors sent a letter by fax to the tribunal office in which they advised that they had recently been instructed in the matter and that they would be applying for an extension of time to file a response a copy of which was enclosed. The solicitors went on to point out that they believed that the tribunal did not have jurisdiction to entertain the claim because it was not brought within the three month time limit and because the claimant had not raised a grievance about the matter. The response repeated these points and provided a detailed rebuttal of the claimant’s claim. The solicitors’ letter concluded by indicating that on the assumption that the application to file a response was refused they would apply for a review in the interests of justice.

7. When the matter came before us Mr McEvoy moved the application to submit a late response and referred the tribunal to Bone v Falcon projects Ltd [2006] ICR 1421 EAT, Kwik Save Stores Ltd v Swain [1997] ICR 49 EAT and paragraphs 346 to 354 of Harvey. Mr McCann expressed a degree of scepticism about the respondent not receiving the claim form in view of the normal arrangements that are available for mail being forwarded by the Post Office but ultimately he did not seek to resist the application for an adjournment.

8. Rule 9 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 makes provision in relation to responses as follows:

“A respondent who has not presented a response to a claim or whose response has not been accepted shall not be entitled to take any part in the proceedings except to –

(a) make an application under rule 33 (review of default judgements);

(b) make an application under rule 35 (preliminary consideration of application for review) in respect of rule 34(3) (a), (b) or (e);

(c) be called as a witness by another person; or

(d) be sent a copy of a document or corrected entry in accordance with rule 8(4), 29(2) or 37,

and in these Rules the word “party” or “respondent” includes a respondent only in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes.”

Regulation 3 sets out the overriding objective of the Rules as follows:

“3.—(1) The overriding objective of these Regulations and the rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and chairmen to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable –

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously

and fairly; and

(d) saving expense.

(3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he –

(a) exercises any power given to it or him by these Regulations or the rules in Schedules 1, 2, 3, 4, 5 and 6; or

(b) interprets these Regulations or any rule in Schedules 1, 2, 3, 4, 5 and 6.

(4) The parties shall assist the tribunal or the chairman to further the overriding objective.”

9. We did not receive any evidence from the respondent as we did not consider it appropriate to do so having regard to the contents of Rule 9 although Mr McEvoy did provide the tribunal with an indication as to his instructions with regard to the respondent’s change of premises. We note in passing that this was not entirely consistent with Mr Nealis’ letter of 15 October 2010 or the contents of the response. This, however, is properly a matter for consideration by the tribunal in the event of a review being undertaken.

10. We gave a brief extempore decision at the conclusion of submissions in which we indicated that the correct course was to refuse the application to submit a late response as we were obliged to do in view of the contents of Rule 9 and that the respondent could seek to review that decision if so advised.

11. We also gave careful consideration as to whether the hearing of the claim should nonetheless proceed without any participation by the respondent or should be adjourned. Not without some hesitation we concluded that consistent with the overriding objectives it was in the interests of justice to adjourn the hearing. Mr McCann very fairly did not object to this course and made no application for costs or witness expenses. In the event of an application being made for a review and not being refused under Rule 35 the review hearing will take place before the same tribunal.

Chairman:

Date and place of hearing: 19 October 2010, Belfast.

Date decision recorded in register and issued to parties:

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