Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/00529_11IT.html
Cite as: [2011] NIIT 529_11IT, [2011] NIIT 00529_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 529/11

CLAIMANT: Gerald Power

RESPONDENT: Orla Sheehan

T/A Fruithill Private Nursing Home

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1) The claimant’s letter to the tribunal dated 8 July 2011 received by the tribunal on 11 July 2011 was a withdrawal for the purposes of Rule 25(1) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

(2) The claimant’s claim of unfair dismissal is therefore dismissed following the said withdrawal.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was unrepresented.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Reasons

1. The claimant presented a claim of unfair dismissal to the tribunal on 10 February 2011, which was accepted by the tribunal. The respondent presented a response to the tribunal, in which the respondent denied liability, on 24 March 2011, which was accepted by the tribunal.

1.2 The claimant gave evidence orally to the tribunal at this hearing. In light of his evidence, I found the following findings of fact, as set out in the following paragraphs of this decision.

2.1 By Notice dated 22 June 2011, the tribunal listed the claimant’s claim for hearing on 4 August 2011.

2.2 By faxed letter dated 5 July 2011, the respondent’s representative wrote to the tribunal, with copy to the claimant, asking that the matter be listed for a full hearing for four days from 4 August 2011 – 9 August 2011. On 6 July 2011 the claimant appears to have also had a telephone conversation with the respondent’s solicitor in which he indicated that he wished to seek an adjournment of the matter to enable him to have certain hospital investigations; and was told in relation to any application for such an adjournment on the grounds of his current state of health, he would require to make an application in writing to the tribunal and to provide, inter alia, medical evidence/ report/letter relating to the application. This was confirmed in a letter to him by the respondent’s representative dated 7 July 2011.

2.3 In evidence to the tribunal, the claimant suggested, which evidence I accept, that on 5 or 6 July 2011, albeit there is no record of such a call, he contacted the tribunal by telephone about a postponement. He was told to contact the respondent before applying to the tribunal; which I am satisfied resulted in the conversation with the respondent’s representative on 6 July 2011 and subsequent correspondence referred to in the previous paragraph.

2.4 By letter dated 8 July 2011, which was not received by the tribunal until 11 July 2011, the claimant wrote to the tribunal and stated:-

“I wish to advise that due to ill-health and upcoming hospital investigation I would like to withdraw my claim of unfair dismissal. My apologies for any convenience caused.”

It is to be noted that, despite the respondent’s representative’s letter to the claimant dated 7 July 2011 and his earlier enquiry about a postponement of the hearing, the claimant in his letter dated 8 July 2011 did not expressly refer to any request for postponement.

2.5 By letter dated 11 July 2011 the respondent’s representative was informed by the tribunal that:-

“The claimant in the case named above has given notice of the withdrawal of his originating claim. The withdrawal takes effect from 8 July 2011. A copy of the decision to dismiss the claim will be forwarded to you in due course.”

The respondent’s representative accepted, for the purposes of these proceedings, and without the necessity to call the Secretary of the Tribunals to give evidence, that this letter was sent contrary to the tribunal’s normal procedures and was an administrative error. In light of my decision in this matter, as set out below, it is not necessary to consider further the said procedures and administrative error further. In addition, I note in passing that, contrary to the terms of the letter, since the claimant’s letter was not received by the tribunal until 11 July 2011, any withdrawal could not have taken effect until 11 July 2011 and could not have taken effect on 8 July 2011, as set out in the tribunal’s letter. Again, in light of my decision this error is not relevant (see further Rule 25(3) of the Rules of Procedure set out elsewhere in this decision).

2.6 Properly, in accordance with the tribunal’s normal procedures, the claimant’s letter was referred to me as Chairman to consider whether I should make a judicial decision dismissing the claimant’s on withdrawal, if appropriate, in light of the claimant’s letter, dated 8 July 2011. Unfortunately, I was not made aware of the letter sent by the tribunal dated 11 July 2011 to the respondent’s representative. However, given the claimant was unrepresented and having regard to the terms of his letter and his references to ill-health and upcoming hospital investigations, and the terms of the overriding objective, I directed, by letter dated 14 July 2011, that clarification be obtained from the claimant, before the claim was dismissed upon withdrawal, if he wished to seek a postponement due to ill-health and upcoming hospital investigations referred to in his letter and to inform him of the steps necessary to apply for such a postponement, and to point out that failure to make any such application would result in the tribunal making a decision to dismiss his claim, on withdrawal.

Subsequently, the claimant sought by telephone and in correspondence a postponement on grounds of ill-health.

3.1 At a Case Management Discussion on 29 July 2011, it was agreed that, before considering further the claimant’s application for a postponement, the tribunal should consider and determine the following issues:-

“(1) Was the claimant’s letter to the tribunal dated 8 July 2011 received by the tribunal on 11 July 2011, a withdrawal for the purposes of Rule 25(1) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

(2) If so, was the tribunal required to make a decision dismissing the claimant’s claim on withdrawal, subject to the right of the claimant to review and/or appeal the said decision, pursuant to Rule 25(4) of the Rules of Procedure.”

3.2 Rule 25 under the said Rules of Procedure is different to that found in Great Britain. In various legal authorities Rule 25 in Great Britain has been the subject of much judicial criticism (see further Khan v Heywood & Middleton Primary Care Trust [20096] EWCA 1087). A crucial difference between the Rule in Northern Ireland and Great Britain is the absence of any ability for a Chairman to exercise any discretion in relation to the making of the judicial decision dismissing a claim when there has been a withdrawal made by a claimant.

3.3 Under the Rules of Procedure in Northern Ireland, Rule 25 provides as follows, insofar as relevant to this decision:-

“(1) A claimant may withdraw all or part of his claim at any time. This may be done either orally at a hearing or in writing in accordance with Paragraph (2).

(2) To withdraw a claim or part of one in writing the claimant must inform the Office of the Tribunals of the claim or the parts of it which are to be withdrawn …

(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Office of the Tribunals (in the case of written notifications) … receives notice of it …

(4) Where the whole of part of the claim is withdrawn the proceedings or the relevant part of the proceedings so withdrawn are brought to an end against the respondent on that date and the tribunal or Chairman shall [tribunal’s emphasis] dismiss the proceedings or the relevant part of the proceedings so withdrawn. The claimant may not commence a further claim against the respondent for the same or substantially the same, cause of action in the tribunal (unless the decision to dismiss is successfully reviewed or appealed).”

4.1 The respondent’s representative contended that the terms of the claimant’s letter dated 8 July 2011 did not amount to a conditional withdrawal and could not be considered in any way equivocal; and since it was therefore a withdrawal by a claimant, it required, under Rule 25 to be dismissed by a Chairman upon such withdrawal. In such circumstances, Mr Hamill contended there was no opportunity for a Chairman to seek further clarification and/or to exercise any discretion, given the use of the word ‘shall’ in Rule 25(4) of the Rules of Procedure. In the event it was not necessary to consider the above issues any further as the claimant, in his evidence, accepted that when he wrote the letter, dated 8 July 2011, he was intending to withdraw his claim at that time and was not seeking the postponement, which had been referred to previously in his oral discussions with the respondent’s representative and prior to that with the tribunal. He stated that, shortly after sending the letter to the tribunal, he changed his mind about the withdrawal of the claim and decided he in fact wanted to seek a postponement because he considered he was now physically and mentally able to pursue the matter. He had not felt this at the time he wrote the letter. He further explained that, at the time, his health was fluctuating and this had contributed to his change of mind within such a short space of time.

4.2 In light of the claimant’s own acceptance that the letter was a withdrawal, I find there was a withdrawal for the purposes of Rule 25(1).

I consider given the terms of Rule 25(4), and, in particular, the use of the wording ‘shall dismiss where there is a withdrawal’, I have no alternative, in the absence of any discretion, but to make the decision, and I do so, that the claimant’s claim of unfair dismissal is dismissed, upon his withdrawal of the claim in his letter dated 8 July 2011.

5.1 It will therefore be a matter for the claimant, if he wishes to do so, whether to make an application for review pursuant to Rule 34 of the Rules of Procedure or to appeal this decision, having regard to the provisions of Rule 25(4) of the Rules of Procedure, as referred to in Paragraph 3.3 of this Decision. In the event, of any such application, it will be a matter for that tribunal, to determine that application, in light of the grounds relied upon in any such application.

Chairman:

Date and place of hearing: 30 September 2011, Belfast

Date decision recorded in register and issued to parties:

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