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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McNab v Crawfordsburn Inn Ltd [2013] NIIT 683_13IT (02 August 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/683_13IT.html
Cite as: [2013] NIIT 683_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 683/13
CLAIMANT: Sharon Tracey McNab
RESPONDENT: Crawfordsburn Inn Ltd
DECISION
The claimant’s claim is struck-out, pursuant to Rule 13(2) of the Industrial Tribunals Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 for failure to comply by 26 July 2013 with an ‘Unless Order’ made by the tribunal on 17 July 2013.
Constitution of Tribunal:
Chairman (sitting alone): Mr N Drennan QC
Reasons
1. At a Case Management Discussion on 6 June 2013, as set out in the Record of Proceedings, it was agreed that a pre-hearing review would be listed for the tribunal to determine jurisdictional issues relating to time on 24 July 2013. It was further agreed, and the Vice President ordered, for the purposes of the said pre-hearing review, that the claimant would furnish to the respondent’s representative by 28 June 2013 copies of all relevant GP records or other medical records upon which she intended to rely at the pre-hearing review. She failed to do so and a further Case Management Discussion was arranged on 17 July 2013 to consider the respondent’s application, inter alia, for an ‘Unless Order’ for failure to comply with the said Order made by the Vice President on 6 June 2013, as set out above.
2. At the Case Management Discussion on 17 July 2013, as set out in the Record of Proceedings dated 17 July 2013, the claimant’s representative confirmed that no medical records, pursuant to the said Order had been provided to her by the claimant, albeit she accepted that such records would be relevant and necessary for the determination of the said jurisdictional time-issues. She also confirmed she had written and telephoned the claimant in relation to her said failure but without any response by the claimant.
3. I refused to strike-out the claimant’s claims at the Case Management Discussion on 17 July 2013; as I did not consider this was an appropriate Order at that stage (see Abegaze v Shrewsbury College of Arts [2010] IRLR 238). However, having agreed to adjourn the pre-hearing review listed for 24 July 2013, I made an ‘Unless Order’, without objection by the claimant’s representative, which was issued to the claimant on 17 July 2013, for the reasons set out in the Record of Proceedings (see further Abegaze). I considered this to be an appropriate lesser sanction in the circumstances.
The said ‘Unless Order’ stated:-
“TAKE NOTICE THAT UNLESS you comply with the Order made by the Vice President at the Case Management Discussion on 6 June 2013, as set out in the record of proceedings dated 12 June 2013, that the claimant shall furnish to the respondent’s representative copies of all relevant GP records or other medical records upon which she intends to rely at the Pre Hearing Review by 26 July 2013 IT IS ORDERED THAT your claim to this tribunal may be struck out, pursuant to Rule 13(2) of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, for failure to comply with the Order, without further consideration of the proceedings or the need to give any further notice or to hold any further hearing.
A copy of the record of proceedings dated 12 June 2013 is attached hereto.”
4. By e-mail dated 29 July 2013 from the respondent’s representative, the tribunal was informed the claimant had not complied with the said ‘Unless Order’. In addition, the tribunal was informed that the claimant has also failed to provide to the respondent’s representative by 22 July 2013 (as also ordered by the Vice President at the Case Management Discussion, on 6 June 2013) a witness statement which was required to deal with the following matters, for the purpose of the pre-hearing review:-
“Exactly what her evidence is in relation to this pre-hearing review, ie to explain exactly on what basis it was not feasible for her to have lodged her claims in the tribunal within the statutory time-limits or earlier than 3 April 2013.”
The claimant has not provided any reason for her failure to comply with the ‘Unless Order’ or for her failure to comply with the Order relating to the said witness statement. She has failed to give her representative any relevant instructions in relation to the said Orders and, in the circumstances, has wilfully refused to comply with the tribunal’s Orders. She has not made any application for any relief from sanction for failure to comply with the ‘Unless Order’ and/or any extension of time, if required, for compliance with the said ‘Unless Order’.
5. Rule 13(2) of the Rules of Procedure provides:-
“A decision or order may also provide that unless the decision or order is complied with the tribunal or Chairman may [tribunal’s emphasis] make a decision striking out the claim … without further consideration of the proceedings or the need to give notice under Rule 19 or hold a pre-hearing review or a hearing under Rule 26.”
This must be contrasted with the equivalent Rules of Procedure in Great Britain where a decision to strike-out automatically must follows the non-compliance. I am therefore satisfied I still retain a discretion whether to strike-out the claimant’s claims without further consideration of the proceedings or need to give further notice or hold any further hearing where a claimant has failed to comply with an ‘Unless Order’ made pursuant to Rule 13(2) of the Rules of Procedure.
6. Having been informed by the claimant’s representative that the said medical evidence is relevant and necessary for the determination of the said jurisdictional time-issues and in the continuing absence of any explanation by the claimant for her failure to comply with the original Order and now the said ‘Unless Order’ and after taking into account her further failure, again without explanation, to comply with the tribunal’s Order to provide the said witness statement, I am satisfied, in the exercise of my discretion, the claimant’s claims must now be struck-out. I think such a decision is appropriate in the above circumstances, in light of the terms of the overriding objective. The claimant, as set out in the Record of Proceedings dated 17 July 2013, was made fully aware of the consequences of her failure to comply with the said ‘Unless Order’ and, in the circumstances, I am not satisfied any further notice or hearing is required before imposing the said sanction of strike-out.
7. The claimant’s claims are therefore struck-out.
Chairman:
Date decision recorded in register and issued to parties: