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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Klosinka v Countrywide Care Homes Limited Lisa Mullan Coleen Toner Erin Abernethy Deborah Hawthorne [2014] NIIT 628_13IT (12 August 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/628_13IT.html
Cite as: [2014] NIIT 628_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 628/13
CLAIMANT: Barbara Klosinka
RESPONDENTS: 1. Countrywide Care Homes Limited
2. Lisa Mullan
3. Coleen Toner
4. Erin Abernethy
5. Deborah Hawthorne
RULING ON AN APPLICATION FOR A PREPARATION
TIME ORDER
Constitution of Tribunal:
Employment Judge: Employment Judge McCaffrey
Members: Mrs K McCrudden
Mr H Stevenson
Appearances:
The claimant appeared in person.
The respondents were represented by Ms Zhaleh Bastani of Hicks Watson Employment Law Practice.
This hearing involved an application by the claimant for a Preparation Time Order following a decision issued by the tribunal on 6 December 2013. It was the majority decision of the tribunal that the claimant had been unfairly dismissed and the unanimous decision of the tribunal that the claimant had been unlawfully discriminated against on grounds of her race. Following that the claimant made an application for a preparation time order.
1. The claimant outlined the time she had spent in preparation for the case in a letter dated 30 December 2012 which had been submitted to the tribunal and she claimed 107 hours in preparation time.
2. At the hearing the claimant set out details of the time she has spent in preparing the case. She effectively argued that the respondents in conducting the case had ignored the points she had put forward in her own defence at the investigation and disciplinary stage and also had not properly addressed her grievance in relation to discriminatory treatment she had received.
3. It was the submission made by Ms Bastani that the respondents’ representative had done everything possible to attempt to facilitate the claimant as an unrepresented party in the conduct of the case and she quoted examples of this. She also indicated that the respondent had a genuine belief in the merits of its case. She pointed to the fact that the respondent had run the case for five days at tribunal and that numerous witnesses had been called to give evidence, requiring their absence from the business. She also pointed out that the claimant had dropped her claim of race discrimination against Bronagh Donaghy shortly before the commencement of the case.
4. In considering our ruling in relation to this matter we have taken account of the content of Rules 44-45 inclusive of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 2005. In particular we are conscious of the provisions of Rule 44 which provides as follows:-
“44 ...
(1) A tribunal or chairman may make a preparation time order when on the application of a party it or he has postponed the day or time fixed for or adjourned a hearing under rule 26 of a pre-hearing review. The preparation time order may be against, or as the case may require, in favour of that party as respects preparation time spent as a result of the postponement or adjournment.
(2) A tribunal or chairman shall consider making a preparation time order against a party (the paying party) where, in the opinion of the tribunal or the chairman (as the case may be) any of the circumstances in paragraph (3) apply. Having so considered the tribunal or chairman may make a preparation time order against that party if it or he considers it appropriate to do so.
(3) The circumstances described in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.
(4) A tribunal or chairman may make a preparation time order against a party who has not complied with an order or practice direction”.
5. We have also taken into account the case law which is relevant to these issues as set out in Harvey on Industrial Tribunals (Industrial Relations and Employment Law) Volume 3 Division P(I), paragraphs 1056 and following.
6. We have considered the dicta of Phillips J in Cartiers Superfoods Ltd v Laws [1978] IRLR 315 to the effect that in order to determine whether a party acted frivolously, it was necessary “to look and see what that party knew or ought to have known if he had gone about the matter sensibly”. Harvey also notes that it is important that such an approach is applied with caution as otherwise parties could end up being penalised for not assessing the case at the outset in the same way as a tribunal may do following a hearing in evidence. We are conscious that what may be plain to see with the benefit of hindsight may be far from clear before the hearing of a case and we believe that this is the situation in this case. While we criticised the respondent for how they conducted their investigation and failed to conduct the grievance thoroughly, we do not think that their conduct was at a level which merits an award of preparation time costs. In all the circumstances we are not satisfied that the respondent or its representative acted vexatiously, abusively, disruptively or otherwise unreasonably, or that the conducting of the proceedings was misconceived on their part. Accordingly in the circumstances it would not be appropriate to make a preparation time order, and the application is refused.
Employment Judge:
Date and place of hearing: 7 August 2014, Belfast.
Date decision recorded in register and issued to parties: