THE INDUSTRIAL TRIBUNALS
CASE REF: 1944/16
CLAIMANT: Pawel Majszyk
RESPONDENT: Kelly Pot Plants & Floral Sundries Ltd
The unanimous decision of the tribunal is that the claimant's claims should be struck out.
Constitution of Tribunal:
Employment Judge: Employment Judge Crothers
Members: Mr B Heaney
Mr I O'Hea
The claimant did not appear and was not represented.
The respondent was represented by Mr G Doherty, Barrister-at-Law instructed by Worthingtons Solicitors.
BACKGROUND AND REASONS
1. (i) At a Case Management Discussion on 18 August 2017, the matter was listed before the tribunal to consider the following issues:
(1) the respondent's strike-out application, and application for costs;
(2) in the event of the case not being struck out, to proceed to hear oral evidence which was to include any application by the claimant to amend his claim.
(ii) The tribunal hearing had to be postponed on 28 November 2017 in the circumstances outlined in the record of proceedings appended to this decision.
(iii) The claimant had presented a claim to the tribunal on 7 September 2016 alleging unfair dismissal, breach of contract, and failure by the respondent to provide written reasons for his dismissal.
(iv) The case has a long history of Case Management Discussions, the records of which, together with other records of proceedings; are appended to this decision for ease of reference.
(v) The claimant did not comply with the further directions given by the tribunal at the hearing on 28 November 2017. The claimant did not contact the tribunal subsequent to that date nor did he appear at the hearing on
25 January 2018. The case had effectively not moved beyond the claimant's claim and suggested amendment. Mr Doherty indicated to the tribunal, if it acceded to the respondent's application for a strike out of the claimant's claims, that the respondent would not pursue an application for costs against the claimant.
(vi) The respondent's application to strike out was based on two grounds:-
(a) the claimant had failed to comply with multiple tribunal orders, including an Unless Order; and
(b) the claimant's conduct of proceedings had been unreasonable.
2. The tribunal carefully considered the written submissions made on behalf of the respondent which refer to the relevant legislative provisions and Rules, together with relevant authorities, and set out the background history.
3. The tribunal had afforded the claimant considerable flexibility consistent with its overriding objective and, insofar as relevant, the principles laid down in the case of Galo v Bombardier (2016) NICA 25.
4. In correspondence dated 10 November 2017 the claimant was advised as to the availability of certain sources for assistance in preparation for the hearing of the case. That correspondence also referred to the tribunal arranging for an interpreter to attend any hearing to assist the claimant and forwarded a copy of Practice Note 3 (2012), which applies in Civil and Family Courts relating to the role of a McKenzie friend. The correspondence also referred to the claimant's application for a postponement of the hearing on 28 November 2017 and again addressed the question of medical evidence being made available. This is set out in paragraph (5) of the correspondence as follows:-
"(5) In your letter you have made an application for a postponement of the hearing on 28 November 2017 on the grounds you are not 'physically and psychologically' ready for the process at the present time due to your health condition. The Employment Judge is not prepared to postpone the hearing on the basis of the limited medical evidence before him, namely a number of statements of fitness for work. To enable the Employment Judge to further consider your application to postpone the hearing you must:-
(i) provide from your doctor/consultant a detailed medical report (not a statement of fitness for work) -
(a) stating your precise medical condition;
(b) why you are unfit to attend and participate in the tribunal hearing on 28 November 2017;
(c) the prognosis for your medical condition; and
(d) in light of the prognosis, when the doctor/consultant considers you are likely to be medically fit to attend and participate in the hearing on 28 November 2017, which, at most, will be a one day hearing and probably shorter.
Such a report must be provided no later than 10 days from the date of this letter.
No such medial evidence was provided to the tribunal, and there was therefore no evidence of any actual disability before the tribunal. The tribunal, however, is satisfied that strenuous efforts were made to provide the claimant with every opportunity to effectively participate in proceedings.
5. The tribunal's Pre-Hearing Review record of a Pre-Hearing Review held on 24 February 2017 ordered the claimant to:-
"set out the particular details of the proposed amended claims in relation to each of the said paragraphs. He is required to do so
by no later than 5.00 pm on 24 April 2017."
Paragraph 7 of the Pre-Hearing Review record of proceedings relating to a hearing on 16 June 2017 stated that:-
"consequently, unless the claimant complies with the Order made in paragraph 6 of the record of Case Management Discussion dated 1 March 2017, a further copy of which is annexed to this record of proceedings, the tribunal may strike out the claimant's claim without further warning or delay, in the absence of reasons being provided by the claimant on or before 30 June 2017".
6. The claimant had still not complied with the Unless Order by the time of the hearing on 25 January 2018.
7. Schedule 1 to Rule 13 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 provides as follows:-
"Compliance with orders and practice directions
13.-(1) If a party does not comply with an order made under these Rules, under rule 7 of Schedule 4 or a practice direction, a chairman or tribunal -
(a) may make an order in respect of costs or preparation time under rules 38-47; or
(b) may (subject to paragraph (2) and rule 19) at a pre-hearing review or a hearing under rule 26 make an order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, order that a respondent be debarred from responding to the claim altogether.
(2) An Order may also provide that unless the order is complied with the claim, or, as the case may be, the response shall be struck out on the date of non-compliance 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".
8. Schedule 1 Rule 18 deals with the conduct of Pre-Hearing Reviews. It provides that:
"... a chairman or tribunal may make an order -
(c) striking out any claim or response (of part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;
(e) striking out a claim or response (or part of one) for non-compliance with an order or practice direction;
Relevant authorities are adequately recited and set out in paragraphs 22-28 of the respondent's submissions annexed to this decision, and the tribunal finds it unnecessary to replicate them.
9. Having considered the foregoing paragraphs together with the content of the records of the Case Management Discussions and other records of proceedings attached to this decision, together with the relevant tribunal Rules and authorities,
the tribunal is satisfied, in the circumstances of the current case, that the claimant has conducted the proceedings before the tribunal in an unreasonable manner so as to make a fair trial impossible. He has also been guilty of deliberate and persistent disregard of required procedural steps.
10. In relation to non-compliance with the Unless Order the tribunal considered its overriding objective. The tribunal also considered all the circumstances, including the magnitude of the default, whether the default was the responsibility of a Solicitor or the party, what disruption, unfairness or prejudice had been caused and whether a fair hearing was still possible. The tribunal is again satisfied that a fair hearing is not possible.
11. Any prejudice to the claimant in striking out his claim, is outweighed by substantial prejudice to the respondent in having to continue proceedings in the context already described in this decision and in the records attached thereto.
12. The tribunal concludes that the claimant's claims should be struck out, that it is proportionate to do so, and in accordance with the tribunal's overriding objective.
Date and place of hearing: 28 November 2017 and 25 January 2018, Belfast.
Date decision recorded in register and issued to parties: