Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01494_10IT.html
Cite as: [2010] NIIT 01494_10IT, [2010] NIIT 1494_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1494/10

CLAIMANT: John Orr

RESPONDENTS: 1. Williams Industrial Services Ltd

2. Northern Ireland Water Limited

DECISION ON COSTS

The decision of the tribunal is that the second-named respondent’s application for costs is refused.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Kinney

Appearances:

The claimant appeared in person and was not represented.

The first-named respondent was represented by Jones Cassidy Jones, Solicitors.

The second-named respondent was represented by Dundas & Wilson CS LLP.

1. The claimant lodged claims for redundancy pay and notice pay against the first-named respondent. The second-named respondent was joined to proceedings on the basis of the content of the first-named respondent’s response. The claimant’s claim came for hearing on 23 November 2010. The claimant did not attend nor did the first-named respondent and the claims were dismissed. The second-named respondent indicated that they wished to make an application for costs. The second-named respondent and the first-named respondent have both made written submissions in relation to costs and both parties have indicated they do not wish to have an oral hearing. I am therefore determining the issue of costs on the basis of the written submissions as provided.

2. The second-named respondent’s application is against the first-named respondent. The application is made under Rule 40 of the Industrial Tribunals Rules of Procedure 2005 on the grounds that the first-named respondent has, in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably and that the conducting of the proceedings by the first-named respondent has been misconceived.

3. I have carefully considered the written submissions of the parties and do not intend to rehearse them here. In essence, the second-named respondent’s challenge is that the first-named respondent asserted that the second-named respondent was the claimant’s employer. The first-named respondent relied upon a decision of the industrial tribunal in another case of Dickson v DRD Water Service & Williams Industrial Services Ltd [Case Reference No: 1575/04]. As a result of this reference, the second-named respondent was joined to proceedings. However, the first-named respondent did not draw attention to the fact that the decision of the tribunal was the subject of an appeal to the Court of Appeal who allowed the appeal and remitted the case to the tribunal for re-consideration.

4. The tribunal in that case again found that Northern Ireland Water Limited was the correct employer of Mr Dickson. This decision was also appealed to the Court of Appeal. The Court of Appeal was asked the following questions:-

“(1) Did the industrial tribunal err in law in deciding that the claimant was an employee of the Water Service as an agency of the Department for Regional Development?

(2) In deciding that the Water Service was an employer of the claimant did the tribunal err in law in its application of the tests set down in James v London Borough of Greenwich [2008] IRLR 302 in deciding that the Water Service was an employer of the claimant, did the tribunal err in law in deciding that the facts found entitle the tribunal to conclude that the agency arrangements no longer dictated or accurately reflected how the claimant actually performed his work.”

The Court of Appeal answered both questions in the affirmative and remitted the matter to the tribunal to determine accordingly. Mr Dickson then withdrew his claim.

5. In considering the application for costs the tribunal must apply a twofold test. It must first consider whether or not there are grounds for making an award of costs and then, secondly, whether such an award should in fact be made. In the tribunal costs do not follow the event. There must be a demonstration of, under Rule 40, unreasonable conduct. In this case the second-named respondent relies on the content of the first-named respondent’s response which it contends was misleading to the tribunal and that it provides a selective summary of the progression of the Dickson case to its ultimate conclusion. It also relies on inaction by the first-named respondent in that it failed to take any steps to see that the second-named respondent be removed from proceedings after its joinder and, finally, that it was unreasonable for the first-named respondent to fail to attend the substantive hearing or advise the second-named respondent that it intended not to appear at the hearing.

6. In reaching a conclusion in this matter, I am mindful that no evidence was heard at the substantive hearing as the claimant failed to attend. I have also taken into account the decision of the Court of Appeal in Dickson. The Court of Appeal quoted, with approval, from Lord Justice Mummery’s comments in the case of James. At Paragraph 51 of the James decision, Mummery LJ said:-

“As illustrated in the authorities there is a wide spectrum of factual situations. Labels are not a substitute for legal analysis of the evidence.”

No evidence was heard in relation to the issue as to who was the correct employer. In the Dickson case the Court of Appeal concluded that the tribunal had misapplied the test laid in James and that the decision was therefore based on an error of law. It then remitted the matter to the tribunal to make its determination accordingly. Whilst in submissions the parties have accepted that the claimant in this case was similar to Mr Dickson in that both were supplied to work for Northern Ireland Water Limited under a contract known as ‘Tender No CO71’ between the first-named respondent and the second-named respondent, there is no other evidence before me to look at individual facts to determine the strength, or otherwise, of the first-named respondent’s position. In the circumstances of this case there appears to me to have been a live issue between the first-named respondent and the second-named respondent as to the correct identity of the employer of the claimant. I do not consider that the first-named respondent has behaved unreasonably nor do I consider that it deliberately set out to mislead the tribunal in the contents of its response.

7. The second-named respondent also criticises the first-named respondent for not taking any steps to remedy matters and seek to have the second-named respondent removed from proceedings. In view of the finding that I have made, that there was a live issue between the parties as to the identity of the employer, it is unsurprising that the first-named respondent did not seek to have the second-named respondent removed from proceedings. The second-named respondent also criticises the first-named respondent in that they failed to attend the hearing or advise the second-named respondent that it intended not to appear at the hearing. In fact, the claimant did not appear at the hearing and the claim was dismissed. I do not consider that the first-named respondent’s absence from the hearing is in itself vexatious, abusive, disruptive or otherwise unreasonable. In fact, it laid the first-named respondent at greater risk of having a finding of liability made against it.

8. For the reasons given above, therefore, the second-named respondent’s application for costs is refused.

Chairman:

Date and place of hearing: 28 January 2011, Belfast

Date decision recorded in register and issued to parties:

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