THE INDUSTRIAL TRIBUNALS

CASE REF:  397/07

CLAIMANT:		Norbert Bernaki

RESPONDENTS:	1.  Steve’s Cakes Limited
			2.  First Choice Selection Services Limited

DECISION

The Claimant has not assisted the Tribunal pursuant to his obligation to do so according to the overriding objective set out in Regulation 3(4) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005. 

The Tribunal determines the Claimant has been unreasonable and vexatious in his conduct of his claim, and has thus breached Rule 18(7) (c) of the 2005 Rules.  Moreover, we also determine the Claimant has not actively pursued his claim, and thus has breached Rule 18(7) (d) of the 2005 Rules.  Accordingly, the Tribunal strikes out the Claimant’s claims for breach of Rules 18(7) (c)-(d) of the 2005 Rules.  In addition, having observed the provisions of Rule 27(6) of the 2005 Rules, we further determine that the entirety of the Claimant’s claims should be dismissed owing to his failure to attend the hearing on 20 March 2008, pursuant to Rule 27(5) of the first Schedule to the 2005 Rules.

Constitution of Tribunal:

Chairman:		Mr O’Brien

Members:		Mrs O’Kane
			Mr Robinson

Appearances:

The Claimant did not appear, was not represented and submitted no written statement.

The first Respondent was represented by Mr W Atchison, of Counsel, instructed by Murphy’s Solicitors.

The second Respondent was represented by Mr T Sheridan, Peninsula Business Services.

Sources of Evidence

The Respondents’ representatives made submissions and adduced documentation.

The Assertions of the Parties

1.	By his claim, presented on 15 March 2007, the Claimant made a number of claims.  The Claimant is a Polish national.  At section 1.8 of the claim, the Claimant asserted he has little or no English and required a translator.  At section 3.1 of the claim, the Claimant named his representative as Valerie Adams of Antrim District Citizens’ Advice Bureau.  At section 6.1 of the claim, the Claimant asserted he had been dismissed on 19 January 2007 and at section 6.5 that this dismissal was without notice or pay in lieu of notice.  At section 7.1, the Claimant expanded on his claims, asserting that he was (i) unfairly dismissed, (ii) received no written reasons for dismissal, (iii) that the statutory grievance procedures were not followed, and (iv) that there were breaches in (unspecified) health and safety regulations.  At section 8.1 of the claim, the Claimant further asserted that he was the victim of racial discrimination, and (sections 8.2 - 8.3) that he first knew of such racial discrimination in May 2006.  At section 10.1 of the claim, the Claimant asserted that he was owed unpaid wages and notice pay.  At section 12.1 of the claim, the Claimant further dilated upon what he regarded as the racial discrimination to which he had been subjected.

2.	The first Respondent’s response was presented on 2 May 2007.  This response asserted at section 3.4 that the Respondent constructively dismissed himself, and at section 6.2 set out an extensive denial of the Claimant’s claims in 38 numbered paragraphs.

3.	The second Respondent’s response was presented on 1 May 2007.  At section 3.3 of this response, it was asserted that the Claimant was not dismissed, and at section 3.5 that the Claimant had not raised a grievance under a grievance procedure.  At section 6 of this response, the second Respondent set out an extensive denial of all the Claimant’s claims.

4.	A Pre-Hearing Review was conducted in this case on 25 September 2007, and the decision of that Pre-Hearing Review was issued to the parties on 16 November 2007.  The Claimant did not appear at that hearing and was not represented.  No reason was advanced for the Claimant’s non-appearance on 25 September 2007.  The headnote of that hearing provides;

(1)	The Claimant is not disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (NI) Order 1996 regarding a minimum period of continuous employment;

(2)	Article 19 of the Employment (NI) Order 2003 (which related to a requirement to make a pre-litigation grievance in writing) prevents the Claimant from presenting a complaint to an Industrial Tribunal in respect of being subjected to racially discriminatory ‘other detriments’ (within the meaning of Article 6(2) of the Race Relations (NI) Order 1997;

(3)	Article 19 of the 2003 Order does not prevent the Claimant from presenting to an Industrial Tribunal any of the other complaints against his employer;

(4)	Article 19 does not prevent the Claimant from presenting any of his complaints against the second-named Respondent.

5.	On 25 September 2007, the Chairman hearing the Pre-Hearing Review directed that there should be a further Pre-Hearing Review on the following issue;

Whether any of the Claimant’s claims against the first-named Respondent should be struck out on the ground that it is misconceived (in the sense of having no reasonable prospect of success).

6.	This latter Pre-Hearing Review was scheduled for hearing on 17 December 2007.  On 14 December 2007, of its own motion, the Office of the Industrial Tribunals decided that it was not appropriate that the second Pre-Hearing Review should proceed on 17 December 2007 and the matter was taken out of the list for that occasion.  We were informed the Office of the Industrial Tribunals took this decision in the light of the dictum of Her Majesty’s Court of Appeal in Northern Ireland in Ryder v Northern Ireland Policing Board wherein Kerr LCJ observed;
Preliminary points in tribunal hearings
[16]	A number of recent appeals from decisions of the Fair Employment/Industrial tribunals have involved challenges to conclusions reached on preliminary points – see, for instance, Bombardier Aerospace v McConnell and others and Cunningham v Ballylaw Foods.  While I do not suggest that the hearing of a preliminary issue will never be appropriate for determination by a tribunal, I consider that the power to determine a preliminary point should be sparingly exercised.  It is, I believe, often difficult to segregate in a wholly compartmentalised way a single issue in this field from other material that may have relevance to the matter to be decided. 

[17]	The present case exemplifies the dangers of isolating a solitary subject from all the other questions that the topic gives rise to and dealing with it as an in limine matter.  As I have already observed, discrimination on the grounds of political opinion may stem from the political views of the discriminator as well as or as an alternative to those of the person who claims to have been discriminated against.  Separating the respondent's claimed political opinions from the entirety of the case is distinctly unhelpful as a means of dealing with all the various matters that may come under the umbrella of discrimination on grounds of political opinion. 

[18]	I consider, therefore, that the tribunal should have declined to deal with this matter as a preliminary issue.  The claim of discrimination on the ground of political opinion called for – at least potentially – a much wider review of the reasons for the decision not to short list the respondent. 

7.	Accordingly, the substantive and entire remaining issues in this matter were listed before a full Tribunal on 20 March 2008 for determination.  It is worth noting that notice of hearing was issued to the parties on 16 January 2008, and that this notice of hearing was issued in both English and Polish.  Moreover, as it had done on 25 September 2007, for the hearing on 20 March 2008 the Tribunal had engaged the services of a translator because of the Claimant’s assertion at section 1.8 of his claim.

8.	We were informed that very extensive efforts have been made to contact the Claimant, without success.  Moreover, we were informed that Antrim Citizens’ Advice Bureau has also made extensive effort to contact the Claimant, with a corresponding lack of success.  Mr Sheridan, the second Respondent’s representative, sent a letter by recorded delivery to the Claimant at the address shown on his claim form.  This letter was sent on 20 February 2008. No reply to this correspondence has ever been received.

9.	The Tribunal perused the Tribunal’s case file in this case, and assured itself that no correspondence has been received from the Claimant since before 25 September 2007.

10.	Both representatives made application that the Claimant’s remaining claims should be struck out owing to the Claimant’s lack of any active pursuit of these actions, pursuant to Rule 18(7) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005 [“the 2005 Rules”].

Findings of Fact

11.	From the submissions made to it by the Respondent’s representatives, we find that the Claimant was an agency worker of the second Respondent who was placed in the premises of the first Respondent on 22 September 2005.  This placement was terminated on 7 March 2006.  The Claimant was replaced at the first Respondent’s premises by the second Respondent on 16 March 2006 and left this latter placement on 19 January 2007.  The Claimant’s claim was received on 13 March 2007.  The allegations of racial discrimination appear to the Tribunal to be out of time, given the three month time limit for presentation of such claims, pursuant to the Article 65 of the Race Relations (NI) Order 1997. 

12.	The second Respondent sent the Claimant correspondence, dated 18 February 2008, by recorded delivery postage on 20 February 2008.  This correspondence was adduced before the Tribunal, and therein Mr Sheridan set out his own telephone number, that of the Labour Relations Agency, and that of Antrim Citizens’ Advice Bureau.  The letter of 18 February 2008 sought replies to a Notice for Additional Information, and concluded by warning the Claimant that “failure to turn up at the Tribunal on 20 March 2008 will leave us with no alternative but to make an application to have your claim struck out”.  No reply to this correspondence was ever received in any form.  Moreover, Ms Adams, whom the Claimant had nominated as his representative at section 3.1 of his claim, has made effort to contact the Claimant on five separate occasions, without success.  The Tribunal was informed that the Claimant no longer attends the Polish club organised by Antrim Citizens’ Advice Bureau. Antrim Citizens’ Advice Bureau has come off record for the Claimant. 

The Issue to be Decided

13.	Whether the Claimant’s remaining claims should be struck out and dismissed in their entirety for want of active pursuit by the Claimant, and by reason of the Claimant’s conduct of his case.

Applicable Law

14.	The applicable law in respect of the Claimant’s claims is provided by the following;

	(i)	Article 65(1)(a) of the Race Relations (NI) Order provides that claims of racial discrimination should be presented to an Industrial Tribunal within three months of when the act complained of was done.
	(ii)	As amended, Rule 18 of the first Schedule to the 2005 Rules provides;
	(6) Before an order listed in paragraph (7) is made, notice must be given in accordance with Rule 19. The decisions or orders listed in paragraph (7) may be made at a pre-hearing review or a hearing under rule 26 if one of the parties has so requested.1  If no such request has been made such decisions or orders may be made in the absence of the parties.
(7)	Subject to paragraph (6), a chairman or tribunal may make a decision or order -
(a)	as to the entitlement of any party to bring or contest particular proceedings;
(b)	striking out or amending all or part of any claim or response on the grounds that it is scandalous, vexatious or misconceived;
(c)	striking out any claim or response (or 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;
(d)	striking out a claim which has not been actively pursued;
(e)	striking out a claim or response (or part of one) for non-compliance with an order or practice direction;
(f)	striking out a claim where the chairman or tribunal considers that it is no longer possible to have a fair hearing under rule 26 in those proceedings; 
(g)	making a restricted reporting order (in accordance with rule 50).

1  Emphasis added

(8)	A claim or response or any part of one may be struck out under these Rules only on the grounds stated in paragraph (7) (b) to (f).
(iii)	Rule 26 of the first Schedule to the 2005 Rules provides for the substantive hearing of a claim. 

(iv)	Rules 27(5) – (6) provide;

(5)	If a party fails to attend or to be represented (for the purpose of conducting the party’s case at the hearing under Rule 26) at the time and place fixed for such hearing, the Tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.

(6)	If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.

(v)	Rules 38-48 of the first Schedule to the 2005 Rules provide the Tribunal with the power to make an order for costs against a party in certain circumstances.
The Decision of the Tribunal

15.	The Tribunal emphasises that, before it made the decision set out below, it considered in full all the information before it in the claim, the responses, the Respondents’ oral and documentary evidence before it, and the representations of the parties’ representatives.

16.	The Claimant has not availed of the opportunity to make his case before the Pre-Hearing Review on 25 September 2007 or before us, despite having been notified of this hearing in his own language.  We note with some frustration the fact that the public purse has suffered the expense of engaging an interpreter on 25 September 2007 and again today, without any productive result and without any forewarning from the Claimant that he would not be in attendance on either occasion.  This cannot be said to be an application of the Claimant’s obligation to assist the Tribunal, pursuant to the over riding objective set out in Regulation 3(4) of the 2005 Rules.  In sharp contrast are the pre-hearing actions of the Respondents’ representatives, and the extensive efforts made by many people to contact the Claimant, without success.

17.	It is, perhaps, academic for the Tribunal to observe that – having considered the contents of the claim in full – the Claimant’s claim of racial discrimination appears to be manifestly out of time, pursuant to Article 65 of the Race Relations (NI) Order 1997.

18.	In any event, Rule 18(6) of the first Schedule to the 2005 Rules provides the Tribunal with the power to strike out a claim for any of the reasons set out in Rule 18(7), and this power may be exercised at a Pre-Hearing Review or a substantive hearing under Rule 26, such as that listed before us. Rule 18(7) (c) provides that a claim may be struck out “on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Claimant…has been scandalous, unreasonable or vexatious”. Rule 18(7) (d) further provides the power to strike out such a claim which has not been actively pursued.  Having considered not only the contents of the claim, and the total absence of any communication from the Claimant to his representative, the Respondents’ representatives or, indeed, the Tribunal itself, the Tribunal has little difficulty in determining that the Claimant has been unreasonable and vexatious in his conduct of his claim, and has thus breached Rule 18(7)(c).  Moreover, we also readily find that the Claimant has not actively pursued his claim, and thus has breached Rule 18(7) (d) of the 2005 Rules.  Accordingly, we strike out his claim for breach of Rules 18(7) (c)-(d) of the first Schedule to the 2005 Rules.

19.	Having observed the provisions of Rule 27(6) of the 2005 Rules, we further determine that the entirety of the Claimant’s claims should be dismissed owing to his failure to attend the hearing on 20 March 2008, pursuant to Rule 27(5) of the first Schedule to the 2005 Rules.

20.	But for the fact that Rule 38(9) of the first Schedule to the 2005 Rules requires that, before such an order is made, the Secretary of the Tribunal must notify a party that s/he can give reasons why an order for costs should not be made, the Tribunal would readily have given consideration to making such an order for the Respondents’ costs.  The Tribunal was referred to this Rule by Mr Atchison and Mr Sheridan, both of whom conceded Rule 38(9) would merely require a further hearing of this matter, with further inconvenience to the parties.  Faced with the undoubted futility of such further hearing, neither the first or second Respondents sought such an Order for costs, and no such further Order is now made.

21.	No other or further order was sought or is now made.

Chairman:

Date and Place of Hearing:	20 March 2008, Belfast.

Date decision recorded in register and issued to parties