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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Dickson v Matthew MccCauley & Paula Beck... [2009] NIIT 407_09IT (09 September 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/407_09IT.html Cite as: [2009] NIIT 407_9IT, [2009] NIIT 407_09IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 407/09
CLAIMANT: Danielle Dickson
RESPONDENT: Matthew McCauley & Paula Beckett t/a “the Play Café”
DECISION
The decision of the tribunal is that the proper respondent in the matter is “Matthew McCauley and Paula Beckett trading as “the Play Café”” and that the claimant’s claim is not well-founded and the claim is dismissed by the tribunal, without further order.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Mr Hampton
Mr Gunn
Appearances:
The claimant did not appear, nor was she represented.
Mr Matthew McCauley and Ms Paula Beckett of the respondents appeared and represented the respondents.
1. By claim form dated 13 February 2009 the claimant claimed against the respondent unfair dismissal. By response to the said claim received by the Office of Tribunals on 31 March 2009, the respondents conceded that the claimant had been employed by the respondents but denied that the claimant had been dismissed and the claimant’s other contentions were denied.
The issues
2. The primary issue for determination by the tribunal was whether or not the claimant’s claim of unfair dismissal was not well-founded and if so what was the appropriate order to be made by the tribunal in consequence. The second issue was the correct identity of the respondent. Further to that, in view of the fact that the claimant did not appear before the tribunal and was not represented, the tribunal had to determine the appropriate procedure for disposal of the claim.
3. The tribunal noted that Notices of Hearing dated 31 July 2009 had been duly sent to the respective parties and the matter had been listed at 10.00 am on the notified hearing date, 17 August 2009. The tribunal sat and the matter was called at 10.05am and there was no appearance by or on behalf of the claimant at that time. By agreement with the respondents, the tribunal stood over the case and rose and then re-sat to hear the matter at 10.35am. The matter was again called and the tribunal noted that there was no appearance by or on behalf of the claimant. The hearing then proceeded in the absence of the claimant.
The correct identity of the respondent
4. The tribunal heard evidence from Mr Matthew McCauley that he traded in partnership with Ms Paula Beckett as “the Play Café”. On the basis of this evidence the tribunal determined that the proper respondent in the matter was “Matthew McCauley and Paula Beckett trading as “the Play Café””.
The applicable procedure where there is no appearance by a party
5. The tribunal’s Rules of Procedure (2005) are contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules’). Rule 27(5) of the Rules states:-
“If a party fails to attend or 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.”
Rule 27(6) of the Rules provides:-
“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.”
The tribunal takes the view that it has been provided by the Rules with a fairly broad measure of discretion in such matters as to whether or not any such case might be adjourned or otherwise dealt with in the manner provided for by the Rules. The tribunal notes the case of Roberts v Skelmersdale College [2003] ICR 1127, [2004] IRLR 69 where the Court of Appeal in England held that when a claimant fails to attend or to be represented at a tribunal hearing, the rules of procedure (being in that case the English equivalent to the Northern Ireland Rules, expressed in similar terms ) do not impose on the tribunal any duty of its motion to investigate the case that is before it, nor do they impose a duty on the tribunal to be satisfied that, on the merits, the respondent to such a case had established a good defence to the claim of the absent claimant. Thus, the tribunal is afforded a discretion that it may adjourn the hearing or may dismiss the claim or may dispose of it in some other way. For a relatively recent commentary on this see Yarrow v Edwards Chartered Accountants [UKEAT/0116/07/RN] – where the Employment Appeal Tribunal in England (His Honour Judge Peter Clarke presiding) stated: “As the Court of Appeal made clear in Roberts v Skelmersdale College [2003] ICR 1127, when considering the earlier Rule 11(3) of the 2001 Rules, the Employment Tribunal has a wide discretion in determining how far it will investigate the merits of the case before dismissing a claim. It need not give ‘due’ consideration to the documents before it, as the Employment Appeal Tribunal wrongly thought in Roberts. However, it seems clear to me from the wording of Rule 27(6) that the Employment Tribunal must, before dismissing an absent party’s claim, consider the information which the parties made available”.
6. In this case, in the face of a complete denial of the claimant’s contentions as set out in her originating claim form, materially a denial that the respondent had dismissed the claimant (a denial indeed repeated orally by Mr McCauley at the hearing), the tribunal would normally be entitled to expect the claimant to adduce evidence (whether oral or written) to the required standard that there was indeed a dismissal in the matter. The tribunal noted that for whatever reason the claimant was not present or represented. There was no evidence of a dismissal.
7. Considering the overriding objective contained in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the tribunal did not believe that it was appropriate to adjourn the proceedings.
8. Accordingly, in this case and following Rule 27(5) of the Rules and Roberts v Skelmersdale College the tribunal is entitled to exercise its discretion to dismiss the claimant’s claim without having to investigate further the evidence and the merits of the case, after having properly taken heed of the Rules. Having done so, the tribunal finds that the claimant’s claim is not well-founded and the claim is dismissed by the tribunal, without further order.
Chairman:
Date and place of hearing: 17 August 2009, Belfast
Date decision recorded in register and issued to parties:
