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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Beggs v Lilburn Contracts [2009] NIIT 478_08IT (06 January 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/00478.html Cite as: [2009] NIIT 478_8IT, [2009] NIIT 478_08IT |
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The decision of the tribunal is that it is not appropriate to strike out the claimant’s claim under Rule 18 of the Industrial Tribunals (Rules of Procedure) 2005.
Constitution of tribunal:
Chairman (sitting alone): Mr P Kinney
1. This Pre-Hearing Review was held to consider whether the claimant’s claim should be struck out by virtue of the provisions of Rule 18(7), (b), (c) or (d) of the Industrial Tribunals (Rules of Procedure) 2005.
2. The claimant made a claim to the Industrial Tribunals which was received on 29 February 2008. The claim was accepted for unfair dismissal and race discrimination and rejected for the right to receive a redundancy payment.
3. A response was received from the respondents on 22 April 2008.
4. The claimant was represented by a firm of solicitors who were notified of a Case Management Discussion to be held on 24 July 2008. Those solicitors forwarded a fax to the tribunal shortly before the Case Management Discussion to confirm they had come off record. Mr Currie had attended the Case Management Discussion and in light of the correspondence from the solicitors the Case Management Discussion was adjourned until 11 August 2008. All parties were notified of the new date. On 11 August the claimant again did not appear and at that hearing the Chairman directed a Pre-Hearing Review should be held to consider whether the claimant’s claim should be struck out. This Pre-Hearing Review was held on 29 August 2008. The claimant did not attend and an Order was made that a Notice be sent to the claimant under Rule 19 of the Industrial Tribunals (Rules of Procedure) 2005 to give him an opportunity to give reasons why an Order striking out his claim should not be made.
5. It then came to the attention of the tribunal through the Labour Relations Agency that the claimant had changed address and the Notice under Rule 19 was sent to the new address. The claimant duly wrote to the tribunal to advise that he was unaware of the previous hearings as he had not received correspondence following his change of address.
6. The tribunal determined that the case should not be struck out and a Case Management Discussion was arranged for 1 December 2008. The claimant did not attend this Case Management Discussion and this Pre-Hearing Review was then directed.
7. Mr Currie on behalf of the respondents pointed out that he had been in attendance at each of the previous hearings at none of which had the claimant been present. He said that it was not clear to him the basis of the claimant’s claim and he felt that it was reasonable to strike out the claimant’s claim in all the circumstances. The claimant was one of a number of employees who were made redundant and was treated the same as everyone else.
8. Mr Beggs explained that he had moved address. He had been unemployed since the date of his dismissal and could no longer afford the rent on his premises and had moved back to his parents’ home. He did not receive any correspondence until the letter notifying him of the Notice informing him that the Chairman intended to strike out his claim. He told the tribunal that he had informed the Labour Relations Agency of his change of address. He had missed the Case Management Discussion on 1 December 2008 as he was attending Accident and Emergency in Craigavon Hospital with a cracked elbow. He informed the tribunal that his mother had phoned the Labour Relations Agency to say he would not be able to attend the Case Management Discussion.
9. Mr Beggs contended that when he was paid off by the respondents he was told they had no work for him. He informed the tribunal that he was qualified to drive both forklift trucks and was a qualified labourer. He said that two Polish workers were doing the same work as him but they were not qualified and they were kept on whilst he was paid off.
10. Mr Beggs gave his apologises for not attending previous hearings but indicated that he strongly wished to continue with his case.
11. I have carefully considered the submissions of the parties. I have also considered the overriding objective which requires that cases are dealt with justly, expeditiously and fairly. I also referred the parties to the case of Blockbuster Entertainment Ltd v James [2006] IRLR 630. In that case the Court of Appeal held -
“The power of an Employment Tribunal under Rule 18(7) to strike out a claim on the grounds that an applicant has conducted his side of proceedings unreasonably is a draconic power, not to be too readily exercised. The two cardinal conditions for his exercise are either that the unreasonable conduct has taken a form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trail impossible. If these two conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. This requires a structured examination. The question is whether there is a less drastic means to the end for which a strike out power exists. The answer has to take account of the fact, if it is a fact, that the tribunal is ready to try the claims, or that there is still time in which orderly preparation can be made.”
12. I am satisfied that in this case the claimant has not been guilty of deliberate and persistent disregard of required procedural steps. Whilst he has not attended the previous hearings he has provided explanations for his non attendance at those hearings. I have taken into account that when the claimant changed his address he should have informed the tribunal of that fact rather than the Labour Relations Agency and similarly that when he did not attend at the Case Management Discussion on 1 December 2008 he should have informed the tribunal and the respondent of any application to adjourn. I accept that the claimant misunderstood the role of the Labour Relations Agency.
13. I further consider that a fair trial is still possible. In those circumstances I do not consider that striking out the claimant’s claim is a proportionate remedy. I therefore dismiss the application to strike out the claimant’s claim.
14. Mr Currie had indicated and the claimant was informed that an application for Preparation Time Order would be made by Mr Currie. Mr Currie decided not to proceed with that application today but has reserved the right, as he is entitled to do, to renew that application at a future date.
15. This matter will now be listed for a Case Management Discussion to prepare the case for hearing. I have identified to the parties the steps they must take in preparation for such a Case Management Discussion and the expectation that those steps will be taken in identifying issues and dealing with any outstanding interlocutory matters such as Discovery. I have stressed to the claimant the importance of attending hearings in the future and if there is any difficulty with attendance to notify both the Office of the Tribunal and the respondent in advance of any application for a postponement or re-arrangement of such a hearing. The claimant understands that such an application will be considered but not necessarily granted and he should attend any hearings unless notified to the contrary. The claimant confirms that he understands now his responsibilities.
16. The parties will be notified of a date and time for a Discrimination Case Management Discussion in due course.
Chairman:
Date and place of hearing: 18 December 2008, Belfast.
Date decision recorded in register and issued to parties:
