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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Browning v Gary McGaughey t/a Refridgerat... [2010] NIIT 7508_09IT (19 May 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/7508_09IT.html
Cite as: [2010] NIIT 7508_9IT, [2010] NIIT 7508_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7508/09
CLAIMANT: Alan Browning
RESPONDENT: Gary McGaughey t/a Refridgerated Distribution
DECISION
The unanimous decision of the tribunal is that the claimant’s claim in respect of unfair dismissal be dismissed under the Industrial Tribunals Rules of Procedure.
Constitution of Tribunal:
Chairman: Mr Palmer
Members: Ms Doran
Ms Heaney
Appearances:
The claimant did not appear, nor was he represented.
The Respondent was represented by Mr Sheridan of Peninsula Business Services Ltd
The Title
1. The title to the proceedings was amended with the agreement of the respondent’s representative. When the matter came before us the respondent was named as, “G McGaughey Refridgerated Distribution” and was amended, by us, to “Gary McGaughey t/a Refridgerated Distribution”. The respondent confirmed the spelling “Refridgerated”.
Application
2. At the commencement of this case, on 30 April 2010, the respondent made an application, under paragraphs (5) and (6) of rule 27 of the Industrial Tribunals Rules of Procedure (which are contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 that the claimant’s claim, which was in respect of unfair dismissal, be dismissed. The claimant was not in attendance, nor was he represented. We were not made aware of any reason for his non-attendance. Mr Sheridan had heard nothing from the claimant: he could not, therefore, assist.
3. We heard representations on behalf of the respondent, retired and considered the matter. We gave an oral decision, on the day of the hearing, dismissing the proceedings under the provisions of paragraphs (5) and (6) of rule 27 of the Rules of Procedure. We stated that we would give our reasons in writing, at a later date.
The Rules
4. Paragraphs (5) and (6) of rule 27 provide as follows:
“(5) If a party fails to attend or be represented (for the purpose of conducting the party’s case at a 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.
(6) If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which had been made available to it by the parties.”
The Decision
5. We considered the rules governing non-attendance, as set out above, the case of Roberts v Skelmersdale College [2003] ICR 1127, a decision of the Court of Appeal (England and Wales) dealing with a rule in similar terms to rule 27 (5) set out above, the claimant’s initiating document, the IT1, the respondent’s response, the respondent’s submissions, the fact that dismissal was admitted and the matters set out in the paragraph immediately below. We also took account of the matter set out in paragraph numbered 7 below.
6. We are satisfied, on balance, of the following:
(1) That the claimant has a history of non-attendance at internal disciplinary proceedings: the proceedings had to be re-scheduled. With regard to the disciplinary proceedings that eventually led to his dismissal, the claimant did not attend a hearing fixed for 17 September 2009, nor did he attend a re-scheduled one where further matters were also to be considered. The claimant was dismissed as a result of the matters considered on 17 September 2009. He appealed the decision to dismiss and an appeal hearing was fixed for 19 October 2009. On that date the claimant sent a text message to say that he was unable to attend and the appeal hearing was re-scheduled for 29 October 2009. The claimant did not attend the re-scheduled hearing:
(2) That the respondent attempted to contact the claimant on 6 occasions and did not receive a response. On one of these occasions (on 6 March 2010) the respondent sent a number of documents, pertaining to the case, to the claimant by special delivery post and the claimant did not pick up the delivery at the Post Office:
(3) That the Labour Relations Agency has been unable to contact the claimant: and
(4) That the day of the hearing (Friday 30 April 2010) was a particularly busy one for the respondent, who is in the delivery business, with the weekend and the Monday holiday pending. The respondent was present as was his Transport Manager, Mr Kennedy, to give evidence in the event of the application for dismissal being refused.
7. We were conscious, in coming to our decision, that the respondent and Mr Kennedy have a business to run and it was important that that was taken into account by us in coming to our decision.
8. We considered whether we should adjourn the case, but we had no grounds to do so as we had heard nothing from the claimant. We then considered the application. We considered that, in all the circumstances, we should not “dispose” of the case and that we should, for the reasons set out, accede to the application to dismiss.
Chairman:
Date and place of hearing: 30 April 2010, Belfast.
Date decision recorded in register and issued to parties: