Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF:   207/15

CLAIMANT:                      Darren William Frazer

RESPONDENT:                Damiraco Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant’s claim of unfair dismissal was dismissed for want of jurisdiction as being outside the statutory time-limit with no grounds upon which an extension of time could be granted.  I also declined to make an Order for Costs against the claimant on the application of the respondent.

Constitution of Tribunal:

Vice President (sitting alone):              Mr N Kelly

Appearances:

The claimant did not appear and was not represented.  He did not explain his               non-appearance.

The respondent was represented by Ms K Irvine, of Croner Group Ltd.

1.       This is a claim of unfair dismissal.  The claimant was summarily dismissed after, on his admission, he had damaged a coffee machine owned by the respondent company which operated a hotel.  The claimant explained on his claim form that he had done this in a fit of temper. 

2.       It is clear that the statutory dismissal procedures were not followed in this instance.  However, it is equally clear that any compensation which might have been due in this matter would have been significantly reduced if not eliminated completely.

3.       The claimant was summarily dismissed on 7 November 2014 and his claim in the tribunal was not lodged until 13 February 2015.  It was therefore outside the statutory time-limit of three months.  This pre-hearing review was therefore listed to determine whether or not the claim was out of time and, if so, whether that time-limit should be extended. 

4.       The onus of proof in such instances is on the claimant to establish that an extension of time should be granted for the reasons set out in the Employment Rights (Northern Ireland) Order 1996.  In the absence of the claimant and in the absence of any evidence on behalf of the claimant, that onus has not been discharged.  Therefore in an oral decision the claim of unfair dismissal was dismissed for want of jurisdiction as being outside the statutory time-limit with no grounds upon which an extension of time could be granted.

5.       After the oral decision, Ms Irvine made an application for costs.  I had significant sympathy with that application, particularly since Ms Irvine had had to travel from Scotland for this hearing and since the claimant had not indicated that he was not going to appear at this pre-hearing review.  Nevertheless, at the previous Case Management Discussion, at which the claimant had also not attended, there had been a clear indication of the risk for costs in one specific set of circumstances, ie if an application for an adjournment had to be made.  If there had been a more detailed or more specific reference to the risk of costs in that Case Management Discussion Record of Proceedings, the position might have been different.  I also note that, in the circumstances of this case, the dismissal, leaving aside the issue of time and the issue of any potential reduction in remedy, was technically unfair for the purposes of the 1996 Order and the 2003 Order.  I also note that Orders for Costs are not the rule in this jurisdiction and are granted relatively infrequently. 

6.       While it is clear that the claimant in this case has acted unreasonably in failing to turning up for this pre-hearing review or indeed for the previous Case Management Discussion, without explanation, I still have to separately exercise the discretion as to whether or not it would be appropriate to award an Order for Costs in all the circumstances of the case.  Given the technically unfair nature of the dismissal and given the absence of any clear indication at the previous Case Management Discussion of a risk of costs in these precise circumstances and, finally, given the general position in relation to costs in this jurisdiction, I declined to exercise that discretion and decided not to order costs in this matter.

Vice President:

Date and place of hearing:         28 May 2015, Belfast

Date decision recorded in register and issued to parties: