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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Zielinski v McShane Packaging Ltd [2014] NIIT 1960_13IT (15 May 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1960_13IT.html
Cite as: [2014] NIIT 1960_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1960/13
CLAIMANT: Andrej Zielinski
RESPONDENT: McShane Packaging Ltd
DECISION ON A PRE-HEARING REVIEW
The tribunal grants leave to the claimant to amend his claim to include complaints of unlawful deduction from wages, breach of contract and racial harassment.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Greene
Appearances:
The
claimant was represented by Mr J McStravick, of counsel, instructed
by
Jarlath Fields Solicitor.
The respondent was represented by Mr C Hagan, of counsel, instructed by John P Hagan Solicitors.
SOURCES OF EVIDENCE
1. The tribunal did not hear any oral evidence. The tribunal had regard to the claimant’s claim form, the Case Management Discussion Records of Proceedings, the proposed amendments and the submissions from the representatives.
THE CLAIM AND DEFENCE
2. The claimant lodged a claim for race discrimination. The respondent denies the claimant’s claim.
3. Following a Case Management Discussion on 10 April 2014, the tribunal directed that a Pre-Hearing Review be held to consider a number of proposed amendments to the claimant’s claim. The claimant’s solicitor was directed to set out precisely the wording of the proposed amendments in terms of the legal claims and any factual matters upon which such claims are based.
THE ISSUES
4. The issues for determination at the Pre-Hearing Review, as directed at the Case Management Discussion on 10 April 2014, were contained in a letter from the claimant’s solicitor of 16 April 2014. The issue for consideration by the tribunal is as follows:-
“Whether the claimant be granted leave to amend his claim to add claims for:-
(a) unfair dismissal;
(b) unlawful deduction from wages/breach of contract; and
(c) racial harassment”.
Following discussion between the Employment Judge and the parties the claimant withdrew his application to amend his claim by adding a claim for unfair dismissal.
FINDINGS OF FACT
5. The following facts found by the tribunal emerged from the documents of record or appeared to the tribunal not to be in dispute:-
(1) At paragraph 7.4 of the claimant’s claim form, he set out his claim for race discrimination and set out a number of factual matters. The claim form did not specifically include claims for breach of contract, unlawful deduction from wages or racial harassment.
(2) At the Case Management Discussion on 10 April 2014, Mr McStravick explained to the tribunal that he had been instructed on this matter in place of previous counsel and having perused the papers it was his intention to make an application to amend the claimant’s claim form by the addition of a number of claims.
(3) The tribunal directed that the claimant set out the specific wording of the proposed amendments, serve them on the respondent’s solicitor and the Office of the Tribunals and that a Pre-Hearing Review would be held on 2 May 2014 to consider the claimant’s application for leave to amend his claim.
(4) The specific wording of the proposed amendment was set out by the claimant’s solicitor in a letter of 16 April 2014.
(5) The proposed amendments are:-
(a) “A claim for unlawful deduction from wages/breach of contract. The claimant was contracted to work for 40 hours per week, the claimant worked for approximately three weeks not including the week he was left off the rota. This would have been a total of 120 hours worked if the contract had been adhered to. As a result of the respondent’s failure to provide him with the contracted hours he only received pay for 90.5 hours which grossed at £560.20. If the contract had been adhered to the claimant would have received £742.80 a difference of £182.60.
The claimant was also not paid any accrued holiday pay on leaving nor was he paid any notice pay (if due any depending on the EDT).
(b) The claimant claims that the insistence by the respondent for him to take up residence in one of his rental properties “or else” he would not get any work, was both intimidating and an attack on his dignity. The claimant’s refusal to take up residence in one such property caused him to be removed from the works’ rota by the respondent which is the basis for this claim.”
THE LAW
6. The tribunal has a discretion to make an order giving the claimant leave to amend his claim under Rule 10(2) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
7. Tribunals are required to exercise their discretion in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial decisions (Selkent Bus Company Ltd v Moore [1996] ICR 836 at 842H).
8. The principles to be applied by a tribunal, when considering whether to permit an amendment, are to be found in the Selkent Bus Company Ltd v Moore case and are discussed in Harvey on Industrial Relations and Employment Law P1 [311] and [313].
9. There are three categories of amendment applications:-
(a) The first category covers amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint. This category will not be subject to scrutiny in respect of time-limits but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.
(b) The second category covers amendments that add or substitute a new cause of action but one that is linked to, or arises out of the same facts already pleaded in the original claim. This category of amendment is usually described as putting a “new label” on facts already pleaded. This type of amendment will not be subject to scrutiny in respect of time-limits provided that the claim, which is sought to be amended, has been presented in time but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.
(c) The third category covers amendments that seek to add or substitute a wholly new claim of cause of action or a new positive case involving consideration of facts, that have not been previously pleaded, to determine whether the amendment amounts to a wholly new claim as opposed to a change of label. It will be necessary as a matter of construction to examine the case, as set out in the original application, to see if it provides the necessary and “causative link” with the proposed amendment. Amendment applications coming within the third category are subject to scrutiny in respect of time-limits as if they were entirely new claims that had been brought outside the time-limit. The tribunal should therefore only exercise its discretion to grant an application to amend under this category if it considers it just and equitable to do so. In exercising the discretion the tribunal is required to consider the prejudice which each party would suffer as a result of granting of refusing the application and have regard to all the circumstances, in particular:-
(i) the length of and reasons for the delay;
(ii) the extent to which the cogency of the evidence is likely to be affected by the delay;
(iii) the extent to which the parties have co-operated with any requests for information;
(iv) the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action; and
(v) the steps taken by the claimant to obtain the appropriate professional advice once he knew the possibility of taking action.
APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES
Unlawful Deduction from Wages/Breach of Contract
10. (1) The parties agreed, and I so hold, that this proposed amendment falls under the second category of amendment types set out in the Selkent Bus Company case.
(2) The claimant’s claim form sets out the basis for such a claim in that it makes allegations about contractual terms in relation to hours to be worked by the claimant and hours in fact worked.
(3) The proposed amendment as set out in the letter of 16 April 2014 amplifies that claim in relation to the hours worked. It also adds claims for any holiday pay due and notice pay.
(4) As this is a second category type of amendment it is not subject to scrutiny from the point of view of time-limits.
(5) However, this proposed amendment is subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.
(6) I am satisfied that the hardship to the claimant, should leave not be given to make the proposed amendment, exceeds the hardship to the respondent if such an amendment is made. Failure to grant leave to make the amendment would deprive the claimant of making his claims for any unpaid wages, notice pay or holiday pay whereas the respondent’s right to contest the claimant’s entitlement to these claims remains intact.
11. Accordingly, I grant leave to the claimant to make a claim for unlawful deduction from wages and for breach of contract.
Racial Harassment
12. The claimant argued that by requiring the claimant to rent a property from the employer in order to secure his employment with the respondent amounts to racial harassment in that it was unwanted conduct which had the purpose or effect of violating the claimant’s dignity or intimidating him.
13. That allegation is contained in the body of the claim form at paragraph 7.4, sub paragraph 4.
14. I am satisfied that this is a second category type amendment under the Selkent Bus Company case categories.
15. The claimant contended that it was such a category whereas the respondent’s counsel submitted that it was not a second category amendment but a third category amendment.
16. As it is a second category amendment, in my view, it is not subject to scrutiny from the point of view of time-limits. However, it is subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.
17. I am satisfied that the hardship to the claimant by not permitting this amendment exceeds the hardship to the respondent. Were I not to grant leave to make the amendment the claimant would be deprived of not only making that case but perhaps having an enhancement of any damages by reason of any injury to his feelings should he succeed in his claims under the Race Relations Order. This could be significant.
18. The respondent already faces the same factual allegations under the race discrimination claim and therefore will have to meet them in any event, therefore the hardship to the respondent is considerably less.
19. But, if I am wrong and this is a third category amendment, it is therefore subject to scrutiny from the point of view of time-limits in addition to issues such as hardship and prejudice to the respective parties.
20. Having regard to the factors that I must bear in mind in permitting an amendment under the third category, the reason for the delay is the fresh eyes of a new counsel on the facts and that is done within four months of the claim being made and within days of Mr McStravick having carriage of this matter. Accordingly, the delay in my view is not inordinate.
21. There was no suggestion to the tribunal that this delay would affect the cogency of the evidence likely to be adduced. Nor was it suggested to me that there was any failure to co-operate in the provision of information. As I have already stated within days of Mr McStravick having carriage of this matter, he intimated to the tribunal at a Case Management Discussion on 10 April that he intended to make such an application to amend.
22. Having regard to the factors that are pertinent to a category three amendment, I am satisfied that the time should be extended to 16 April 2014 to enable the claimant to make his claim for racial harassment.
Unfair Dismissal
23. In the light of the claimant’s decision not to pursue this proposed amendment it is not necessary for me to make any comment on that.
CONSEQUENTIAL DIRECTIONS
24. As intimated to the parties at the Case Management Discussion on 10 April 2014, the tribunal would attempt to give such consequential directions if it were in a position to announce its decision on the day. I have announced my decision on the day therefore I make the following consequential directions with the agreement of the parties:-
(1) The respondent will be at liberty to amend its response by 16 May 2014.
(2) The parties are at liberty to agree amendments to the issues, legal and factual, and must do so by 23 May 2014.
(3) The respondent is at liberty to issue a fresh Notice for Additional Information or Discovery by 16 May 2014. The claimant will answer the same by 30 May 2014.
(4) The claimant is at liberty to issue Notices for Additional Information and Discovery following the amended response by 23 May 2014. The respondent will answer the same by 6 June 2014.
(5) The claimant must submit a Schedule of Loss by 11 July 2014. This part was not specifically raised at the tribunal but I make the direction of my own authority.
25. The claimant will issue his witness statements by 11 July 2014.
26. The respondent will issue its witness statements by 8 August 2014.
27. Any matters arising from the respondent’s witness statement which are relevant to any issue in dispute and which has not been dealt with by the claimant in his witness statements may be dealt with by oral evidence.
28. The parties will submit four copies of an agreed bundle by 15 August 2014.
29. The hearing will be from 18 to 21 August 2014. The panel will read the witness statements and other documents between 10.00 am and 12.00 noon on 18 August 2014 and the substantive hearing will commence not before 2.00 pm on that day.
The case is therefore removed from the listing from 10 to 12 June 2014. In the light of the decision to continue with witness statements it would not have been possible to meet the previously arranged date and in addition a witness, who I am satisfied is an important and significant witness on behalf of the claimant, is on holiday in Poland from 6 May until 1 July 2014.
30. A Polish interpreter will be provided to assist the claimant, if necessary, but more particularly to assist other witnesses on behalf of the claimant whose English is not good.
Employment Judge:
Date and place of hearing: 2 May 2014, Belfast.
Date decision recorded in register and issued to parties: