Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 552/15

 

 

CLAIMANT: John Baillie-Smith

 

RESPONDENT: EDM Spanwall Facades Limited

 

 

 

DECISION ON A PRE HEARING REVIEW

 

The President's decision is that the tribunal has jurisdiction to consider and determine the claimant's complaint of unfair dismissal. The hearing in respect of the claimant's application to amend his claim form will reconvene on Thursday 8 September 2015 at 10.00am.

 

 

Constitution of Tribunal:

 

President (sitting alone): Miss E McBride CBE

 

 

 

Appearances:

 

The claimant appeared in person.

 

The respondent was represented by Mr P Bloch of EEF Northern Ireland.

 

 

1. The issues to be determined at this Pre Hearing Review were:-

 

(1) Whether the tribunal has territorial jurisdiction to consider the claimant's claim;

 

(2) whether the claimant's application to amend his claim form to include a further complaint in respect of breach of contract should be granted.

 

2. In relation to the first issue, having considered the claimant's evidence which was undisputed by the respondent, the President was satisfied that the tribunal has territorial jurisdiction to hear and determine the claimant's complaint of unfair dismissal. Oral reasons for that decision were given to the parties at the hearing.

 

3. In relation to the second issue, Mr Bloch indicated that he was unable to identify from either the claimant's e-mail of 20 March 2015 or the claimant's further e-mail of 15 June 2015 what the claimant's breach of contract claim was and that until that was identified he was not in a position to indicate whether the respondent consented or objected to the application. Mr Bloch also indicated that depending on the application the respondent may be raising time issues.

 

4. The President therefore gave the claimant time to identify his breach of contract claim. Having been given that time the claimant identified his breach of contract claim as follows:-

 

(1) that the respondent failed to pay the claimant the remuneration which had been agreed between the parties orally;

 

(2) the respondent breached his contract by failing to ensure that the estimating department serviced his inquiries (approximately 30%) affecting his commission;

 

(3) apart from October 2013, the respondent breached his contract by failing to conduct management meetings with him;

 

(4) the respondent breached paragraph 11 of the written contract by failing to tell the claimant what expenses he was entitled to claim for;

 

(5) the respondent breached point 16 of the written contract by failing to conduct:

 

(i) an informal review on 28 May 2011;

 

(ii) a formal review on 28 August 2011;

 

(iii) an informal review on 28 November 2011;

 

(iv) a formal review on 28 February 2012;

 

(6) the respondent breached paragraph 22 of appendix 2 of the written contract by failing to follow paragraph 5 and items 3 and 4 of the section entitled "Conduct of meetings under the procedure including appeals of the disciplinary procedure".

 

5. Shortly before lunch, Mr Bloch pointed out that the claimant had referred to other paragraph numbers of the written contract in his e-mail of 15 June 2015 which he had not referred at this hearing. The claimant indicated initially that that was because he considered that he was restricted to the oral and written contracts. He later indicated that he did not regard those matters in his e-mail of 15 June 2015 as breaches of contract. To avoid any confusion or misunderstanding the President gave the claimant the opportunity to consider whether there were any other alleged breaches of contract he wished to apply to have his claim form amended to include, whether they emanated from his oral contract, his written contract or from any other matter.

 

6. The claimant indicated that he wished to include two further alleged breaches of contract in his amendment application, namely that:

 

(i) the respondent breached the term of the oral contract that the claimant would be the sole representative of the respondent in the UK and with McMullen in Northern Ireland by arranging for Mr West to visit customers in England and Scotland in or about the summer of 2013 and by arranging for Mr West to visit customers in England in or around mid 2014;

 

(ii) the respondent breached the term of the oral contract that any inquiry that came into the respondent's office, for which the claimant was responsible, would be referred to the claimant and would not be dealt with by anyone else including Mr West prior to 12 September 2014 when the claimant was off due to ill health.

 

7. Mr Bloch informed the President that he would not be in a position to indicate whether or not the respondent consented to the claimant's application to amend or to defend the application as the alleged breaches had not been identified in either the e-mail of 20 March 2015 or the e-mail of 15 June 2015 and he had not therefore been able to take instructions from the respondent. The claimant accepted that those e-mails did not specifically refer to the second, third, fourth or fifth alleged breaches. He contended that Mr Bloch should have been able to identify the first and sixth alleged breaches from those e-mails. Having considered the e-mails I was not satisfied that any of the alleged breaches, including the seventh and eighth alleged breaches, was clear from either of the e-mails and therefore adjourned the hearing to enable Mr Bloch to obtain instructions.

 

8. The Pre Hearing Review will reconvene on Tuesday 8 September 2015 at 10.00am. I made it clear to the claimant that as he is in the process of giving his evidence under affirmation in relation to his application to amend his claim, he must not discuss his evidence with any other person or body. However, to enable the parties to discuss potential conciliation through the services of the Labour Relations Agency, I directed that the claimant could inform them that he has made an application for his claim to be amended to include a breach of contract claim which, if granted, would be considered by a future tribunal. The claimant is permitted to show a copy of this decision to the Labour Relations Agency but must not discuss his evidence with the Labour Relations Agency. Mr Bloch had indicated that in light of the fact that the claimant was in the process of giving evidence it would be preferable that any communication between the parties was done through the Labour Relations Agency.

 

9. The claimant's application in relation to discovery will be considered at the conclusion of the Pre Hearing Review on 8 September 2015.

 

 

 

 

______________________________________

E McBride CBE

President

 

 

Date and place of hearing: 21 July 2015, Belfast

 

 

Date decision recorded in register and issued to parties: