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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Colhoun v Stewart (t/a Hair by Leonard) [2005] NIIT 171_05 (4 July 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/171_05.html Cite as: [2005] NIIT 171_05, [2005] NIIT 171_5

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THE INDUSTRIAL TRIBUNALS

CASE REF: 171/05

CLAIMANT: E Colhoun

RESPONDENT: Leonard Stewart t/a Hair by Leonard

DECISION

An award for costs is not ordered in this case following the claimant's withdrawal of her claim.

Appearances:

The claimant was represented by Mr M Canavan of McGuinness & Canavan Solicitors.

The respondent was represented by Mr P Moore of Peninsula Business Services.

1. The respondent stated that the correct name of the respondent was Leonard Stewart t/a Hair by Leonard and not Marie Stewart t/a Hair Express which was the original name of the respondent. There was no objection to the change of name and the title is amended.
2. The claimant lodged an originating application on 13 January 2005 claiming unfair dismissal and unlawful deductions and failure to pay minimum wage. The respondent entered a Notice of Appearance dated 11 February 2005 in which he claimed that the claimant was not unfairly dismissed but was dismissed by reason of gross misconduct because of alleged theft of hair colouring products from the respondent's salon. The case was listed for hearing on 26 June 2005. The claimant's solicitor stated that on 16 March 2005 he sent a Notice for Further Particulars and Discovery to the respondent, there was no reply from the respondent and the first information he received was by way of a bundle of documents on 7 June 2005. This bundle contained statements from witnesses and in the light of these statements the claimant withdrew the proceedings.
3. The respondent applied for costs following the withdrawal of the proceedings on the grounds that the application was vexatious.
4. At this hearing the claimant's solicitor stated that there was still an ongoing investigation by the Inland Revenue into the question of whether the respondent had paid the minimum wage to the employees. The tribunal saw that the claimant was in receipt of £145.00 net per week. The claimant had stated that she worked from 40-41 hours per week. In light of this difference which was never tested by evidence at a tribunal it can be seen that there was an ongoing basis for a claim to a tribunal.
5. In the circumstances as outlined the tribunal does not find that the claimant has brought a claim which can be viewed as vexatious or abusive or unreasonable as outlined in the provisions of Schedule 1 Rule 14 of the Industrial Tribunal Rules of Procedure Regulations (Northern Ireland) 2004. There is a concern in relation to the claim for unfair dismissal when viewed in light of the respondent's witness statements as contained in the bundle of documents. However, it would appear that there was a conflicting issue over minimum wage entitlement and the number of hours worked by the claimant. This evidence was not tested by a tribunal but is sufficient to bring the case outside the provisions of the costs rule. Accordingly, I do not make an award for costs following the claimant's withdrawal of her application.

Vice President:

Date and place of hearing: Limavady, 4 July 2005.

Date decision recorded in register and issued to parties: