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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sharkey v GarCel NI Ltd [2013] NIIT 1293_13IT (15 November 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1293_13IT.html
Cite as: [2013] NIIT 1293_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1293/13
CLAIMANT: Glenn Sharkey
RESPONDENT: GarCel NI Ltd
DECISION ON A PRE-HEARING REVIEW
The claimant has been granted leave to amend his claim form so as to include: (1) a complaint under Article 71 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) that he was a subjected to a detriment in contravention of Article 70B of the Order and (2) a complaint that he has been the subject of an automatic unfair dismissal of the type which is contemplated by Article 134A of the Order.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Buggy
Appearances:
The claimant was represented by Mr Gerard O’Neill.
The respondent was represented by Mr Teddy Martin.
REASONS
1. I announced my decision at the end of the hearing. At the same time, I gave oral reasons for my decision. What follows is by way of summary only.
2. In these proceedings, as currently formulated, the claimant complains of “ordinary” unfair (constructive) dismissal, and of contravention of Article 71(1ZA) of the Order. He also makes a claim in respect of holiday pay.
3. The claimant was employed by the respondent in the McDonald’s SupaValu, Gilpinstown Rd, Lurgan. In essence, according to the claim form as currently formulated, the claimant alleges the following. He asked for holiday leave payments. (He is a student). He drew the attention of Mr Gary McDonald to his entitlement to holiday pay and asked for holiday pay. He says that, as a result of that conversation, he was then subjected to detrimental treatment, including the institution of disciplinary action against him on “trumped-up” charges. He subsequently resigned from his employment. He says that he did so because of the detrimental treatment.
4. According to the claim form as currently formulated, the alleged acts referred to at paragraph 3 constituted “ordinary” constructive dismissal and the alleged subjection of the claimant to detrimental treatment on account of him having asserted rights under the Working Time Regulations. (In relation to the latter cause of action, see Article 68A and Article 71(1ZA) of the Order).
5. The claimant now wanted permission to amend his claim form so as to include claims that the alleged acts referred to at paragraph 3 above also constituted Article 70B detriment and automatic unfair dismissal of the type which is envisaged at Article 134A of the Order. In deciding to grant the leave which the claimant has sought, in relation to his intended additional claims of public related disclosure-related detrimental treatment and in respect of “automatic” unfair dismissal in respect of a public interest disclosure, I have had regard in particular to the following matters. First, the period of delay, in bringing these additional claims, was relatively short. Secondly, these new proposed causes of action are based on facts which were already specified in the claim form. Thirdly, the respondent is unlikely to suffer prejudice from the late bringing of these claims (as distinct from the prejudice which any respondent suffers as a result of claims being brought at all).
6. Mr Martin had prepared a clear, concise and comprehensive written statement of reasons why leave should not be granted in this case. I have paid careful attention to that submission, in deciding whether or not to grant leave.
7. From now on, the claim form will be deemed to include the two new claims and the response form will be deemed to include a “ blanket” denial of those claims.
8. The other issue that arose in the course of this pre-hearing review was the question of when the main hearing should take place. I decided that the main hearing can be delayed until 10 and 11 February 2014.
Chairman:
Date and place of hearing: 23 October 2013, Belfast.
Date decision recorded in register and issued to parties: