Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   1087/14

 

 

 

CLAIMANT:                      David Brian John Boyd

 

 

RESPONDENTS:              1.       Michelle Hearst

                                        2.       The Huntsman Inn

                                       

 

 

DECISION ON AN APPLICATION FOR REVIEW

 

I hereby extend time to the first respondent to make an application for review of the tribunal’s decision and having heard the review revoke that decision of 27 August 2014 and give certain other directions which are contained within this decision.

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Greene

 

 

Appearances:

 

The claimant was neither represented nor in attendance.

 

Ms Hearst appeared in person and the second respondent was not represented or in attendance.  I am satisfied that notice of the hearing was served on the second respondent.

 

 

1.               By claim form received on 10 June 2014, the claimant brought a claim for unfair dismissal and breach of contract comprising claims for holiday pay, arrears of wages and notice pay.

 

2.               Neither respondent lodged a response.

 

3.               The claim came on for hearing on 26 August 2014 and, in an oral decision, the tribunal awarded the claimant holiday pay of £500, arrears of wages of £250, notice pay of £2,219 and unfair dismissal of £5,083. 

 

4.               On 15 September 2014 the first respondent sent in a letter seeking to review the decision of the tribunal. 

 

5.               The application was five days late and accordingly a hearing was scheduled for 11 November 2014 to consider whether time should be extended to enable the first respondent to make her application for review and if successful to hear that review. 

 

6.               The matter came on for hearing on today.  The first respondent, in relation to her application to extend time to bring the review application, explained that the claim form and two different notices of hearing had not been received by her at her premises.  She did however receive the tribunal’s decision of 27 August 2014 at her premises.  She further indicated that she had been in touch with the LRA when arbitration was discussed and although she says the LRA maintain that she did not want to participate in arbitration she said she did and she believed that would be how this matter would be resolved.  She took no steps whatsoever to obtain the claim form when she became aware that there was a claim against her through the LRA.

 

7.               The tribunal had some reservations about the truthfulness of the first respondent’s contentions however it accepted, with some hesitation, her strong assertion that she did not receive these documents and a plausible explanation that the two addresses to which the Huntsman Inn relates had one at No 10 Castle Street with a post box to which the first respondent did not have access and the other letters may well have been posted there.  Accordingly I extended time to bring the review application.

 

8.               In support of the review application the first respondent relied on Regulation 34(3)(a) and (e) of the 2005 Industrial Tribunal Regulations.  In relation to Regulation 34(3)(a) she relies on the same contention that she did not receive notification of the hearings as she had used in support of her application to extend time.

 

9.               In support of her application under Regulation 34(3)(e) she indicated to the tribunal that she believed she had a good defence to the claimant’s claims. 

 

10.           She says that she will argue, if the decision is revoked, that the first respondent is not and was not the tenant of the Huntsman Inn and that the proper first respondent is Granny Ellie’s Ltd, of which the current first respondent is a director, and therefore the claim should be discontinued against the first respondent in a personal capacity.  She also will argue that at the date of transfer, in March 2014, the claimant was not an employee of the previous tenant and had not been since October 2013.  She believes that she will be able to prove that and that his ceasing to be an employee had nothing to do with the transfer. 

 

11.           She will argue that the claimant’s contract with the previous tenant was an illegal contract, in that income tax and national insurance were not paid, and therefore he should not be able to bring claims for unfair dismissal or breach of contract. 

 

12.           She also will argue that even if the claimant were an employee at the date of transfer that she will be able to rely on the defence in the TUPE Regulations in relation to the organisational and structural change provision. 

 

13.           The tribunal was satisfied that the claimant had not been notified of the hearing and in the light of the arguments advanced by the claimant it is also satisfied that she has an arguable defence and therefore the tribunal sets aside its decision of
27 August 2014.

 

14.           On foot of an application by the first respondent to put in a late response I extend time to 2 December 2014 to enable the first respondent to put in a late response to this claim by reason of the first respondent being unaware of the hearing date and therefore it is in my view just and equitable to extend time for her to do so. 

 

15.           A further CMD will take place on 12 December 2014 at 11.00 am before me to make such directions and other Orders as are necessary to bring this matter on for hearing.

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:  11 November 2014, Belfast.             

 

 

Date decision recorded in register and issued to parties: