Olahova v Interserve (Facilities Managem... Sainsburys Supermarkets Ltd (t... [2011] NIIT 00193

THE INDUSTRIAL TRIBUNALS

CASE REF: 193/11

CLAIMANT: Gabriela Olahova

RESPONDENTS: Interserve (Facilities Management) Ltd (the first

respondent)

Sainsburys Supermarkets Ltd (the second respondent)

DECISION ON REVIEW

The unanimous decision of the tribunal is that the claimant’s applications for review of the decisions dismissing her claims against the respondents are dismissed and the decisions are confirmed.

Constitution of Tribunal:

President: Miss E McBride

Members: Mrs C Lewis

Mr B McGuire

Appearances:

The claimant appeared in person. She gave evidence, questioned witnesses and made submissions through the interpreter Mr Jakub Strebsky.

The first respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

The second respondent was represented by Mr A Brett, Solicitor, of McGrigor Solicitors.

Reasons

The purpose of this Review Hearing was to consider:-

(i) the claimant’s application for an extension of time to make an application for a review of the decision dismissing her claim against the first respondent and, if an extension of time is granted, to consider her application for a review of the said decision;

(ii) the claimant’s application for a review of the decision dismissing her claim against the second respondent.

1. The tribunal heard evidence from the claimant and her son, Mr Olah, through the interpreter Mr Strebsky, on her behalf, from Mr Allison the first respondent’s regional contracts manager on behalf of the first respondent and from Mr Brett on behalf of the second respondent. The tribunal was also referred to a number of documents and to the record of the Case Management Discussion which took place on 28 June 2011.

The Facts

2. The claimant is Slovakian. She came to live in Northern Ireland at the beginning of 2009 and has a limited ability to speak English. She lives with her son, Mr Olah, who came to Northern Ireland from Slovakia in 2007. Although he described his ability to speak English as basic, he accepted, in cross-examination, that he was reasonably competent.

3. The claimant was employed as a cleaner by the first respondent in the second respondent’s premises at Forestside from 25 February 2009 to 31 October 2010.

4. Following the termination of her employment she presented a claim to the industrial tribunal on 23 December 2010 in which she made complaints of unfair dismissal, race discrimination and breach of the Working Time Regulations in respect of breaks against the respondents. The claimant’s claim form was completed, on her behalf, by the East Belfast Independent Advice Centre from whom she was receiving assistance at that time.

5. The first respondent presented its response on 18 April 2011, having been granted extensions of time to do so. The second respondent presented its response on 14 March 2011, having been granted an extension of time to do so.

6. On 3 February 2011 the first respondent sent a letter to the claimant inviting her to a meeting at Sainsburys, Forestside, on 7 February 2011 to discuss her concerns and the possibilities of her returning to work. This followed a letter from the claimant setting out her concerns and the first respondent’s reply. The claimant was informed that she had the right to be accompanied by a work colleague or Trade Union representative and that she also had the right to be accompanied by a translator provided by her. Although this letter was sent to the claimant at the incorrect street number, the claimant accepted that she received it. Although the claimant’s son denied having seen this letter, he attended the meeting on 7^th February 2011 at Sainsburys with his mother, the claimant, and the tribunal is satisfied that he acted as her translator.

7. On 9 March 2011 the first respondent sent a further letter to the claimant inviting her to a follow up meeting at Sainsburys, Forestside, on 15 March 2011 to discuss available positions with her. The claimant was again informed that she had the right to be accompanied by a Trade Union representative and a translator and although this letter was also sent to the wrong street number, the claimant accepted that she received it and she told the tribunal that her son accompanied her to this meeting as well. The tribunal is satisfied that Andrew Conaty was present at both meetings on behalf of the first respondent. The claimant’s son, Mr Olah, told the tribunal that he could clearly remember that he attended two meetings with his mother and that Andrew Conaty was present at both meetings. However, he believed that the second meeting took place at the Argos store and not at Sainsburys. In light of the claimant’s evidence that her son accompanied her to the meeting on 15 March 2011 at Sainsburys and that he was not present with her at the later meetings in Argos, which is consistent with the first respondent’s evidence, the tribunal concludes that it is more likely that the second meeting the claimant’s son accompanied the claimant to was the meeting on 15 March 2011 at Sainsburys.

8. Following that meeting the claimant was re-employed by the first respondent and was provided with two hours’ cleaning work per day at an Argos store in Belfast.

9. On 8 April 2011 Ms Stephanie Idusogie, the first respondent’s business partner sent the tribunal a withdrawal signed by the claimant and asked for the claim to be struck out. The withdrawal was dated 8 April 2011 and was set out at the bottom of a letter dated 30 March 2011 which the first respondent had addressed to the claimant at the same incorrect street number. The letter was in the following terms:-

“I write following the various meetings that have been held in relation to the concerns you raised about your employment.

Following these meetings, an agreement was reached and you have now been re-employed to the company. You have expressed satisfaction with this outcome in the meetings.

It is our understanding that the issues you raised have now been resolved to your satisfaction and would like to ask that you confirm by signing the section below and returning a copy back to the above address (the first respondent’s address) should you wish not to proceed further with your claim.

Do not hesitate to contact me on [telephone number given] should you have any queries. Please respond back before or by 10 April 2011.”

“I agree that the issues have now been resolved and I no longer wish to proceed with the claim.”

10. Following receipt of Ms Idusogie’s correspondence, the Tribunal Office wrote directly to the claimant on 27 April 2011 enclosing a copy of the first respondent’s correspondence and asked the claimant to confirm that it was her intention to withdraw her complaint against the first named respondent within 7 days, otherwise her claim would proceed to hearing.

11. On 5 May 2011, the Tribunal Office received an undated, hand-written withdrawal on a sheet of notepaper with the claimant’s signature in the following terms:-

“I wish to withdraw all claims against Interserve FM Ltd.

It is therefore my intention to withdraw the claim against the first named respondent as I do not wish for the case to proceed any further.”

12. On 14 June 2011, a letter dated 13 June 2011 was received from McGrigors, Solicitors, informing the tribunal that they understood that the claimant no longer wished to pursue her claim against the second respondent, having previously resolved matters with the first respondent. They enclosed a hand-written withdrawal on a sheet of notepaper, dated 10 June 2011, with the claimant’s signature in the following terms:-

“I Gabiella Olahova, wish to take no further industrial tribunal against Sainsburys for now or the future.”

Although the claimant’s first name was spelt incorrectly on the withdrawal, her signature was spelt correctly.

13. Right to withdraw proceedings

Rule 25 of the Industrial Tribunal Rules of Procedure provides:-

(1) A claimant may withdraw all or part of his claim at any time. This may be done either orally at a hearing or in writing in accordance with paragraph (2).

(2) To withdraw a claim or part of one in writing the claimant must inform the

Office of the Tribunals of the claim or the parts of it which are to be withdrawn. Where there is more than one respondent the notification must specify against which respondents the claim is being withdrawn.

(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal

takes effect on the date on which the Office of the Tribunals (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs.

(4) Where the whole or part of the claim is withdrawn, the proceedings or the relevant part of the proceedings are brought to an end against the respondent on that date and the tribunal or chairman shall dismiss the proceedings or the relevant part of the proceedings so withdrawn. The claimant may not commence a further claim against the respondent for the same, or substantially the same, cause of action in the tribunal (unless the decision to dismiss is successfully reviewed or appealed).

14. In light of Rule 25:

(i) the claimant’s claim against the first respondent was dismissed by the

President following its withdrawal and the decision was issued to the parties on 9 May 2011;

(ii) the claimant’s claim against the second respondent was dismissed by the President following its withdrawal and the decision was issued to the claimant and second respondent on the 16 June 2011.

15. By letter dated 15 June 2011, which was faxed to the Tribunal Office at 17:03 on the same date and which was received by hard copy on 17 June 2011, the Equality Commission for Northern Ireland notified the tribunal that it had decided to assist the claimant and that the claimant wished to make an application for a review of the decision dismissing the claim against the first respondent and for an extension of time to do so. By correspondence dated 26 June 2011, received on 30 June 2011, the Equality Commission notified the tribunal that the claimant also wished to make an application for a review of the decision dismissing the claim against the second respondent. The grounds relied on were that the claimant had not received notice of the proceedings leading to the decisions and that the interests of justice required a review. By letter dated 8 July 2011 the Equality Commission for Northern Ireland notified the tribunal that it was no longer representing the claimant and that any future correspondence in the case should be forwarded to the claimant directly.

Review of Decisions

16. Rule 34 of the Industrial Tribunal Rules of Procedure states:-

Rule 34(1) ……

Rule 34(2) ……

Rule 34(3):-

Subject to paragraph (4), decisions may be reviewed on the following grounds only:-

(a) the decision was wrongly made as a result of an administrative error;

(b) a party did not receive notice of the proceedings leading to the decision;

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

(e) the interests of justice require such a review.

Rule 35 states:

(1) An application under rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so”

Rule 36 states:-

(1) Where a party has applied for a review and the application has not been refused after the preliminary consideration mentioned in rule 35, the decision shall be reviewed by the chairman or tribunal who made the original decision. If that is not practicable a different chairman or tribunal (as the case may be) shall be appointed by the President or the Vice-President.

(2) ….

(3) A tribunal or chairman who reviews a decision under paragraph (1) or (2) may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing a new hearing must be held.

Extension of Time

17. The claimant’s application for a review of the tribunal’s decision dismissing her claim against the second respondent was received within the 14 days statutory time limit. However, the claimant’s application for a review of the decision dismissing the claimant’s claim against the first respondent was not received within the 14 days statutory time limit. The decision had been issued to the parties on 9 May 2011. Therefore, any application for a review of the decision should have been made by 23 May 2011. As it was not made until 15 June 2011 it was outside the 14 day time limit. The claimant therefore sought an extension of time to make an application for a review of that decision on the ground that she had not received the decision from the tribunal.

18. The claimant repeatedly changed her evidence with regard to the documents she had received from the tribunal.

In her own evidence the claimant told the tribunal that she had never received documentation from the tribunal.

Under cross-examination from Mr Grainger, on behalf of the first respondent, the claimant initially confirmed that she had not received documentation from the tribunal.

She then told the tribunal that she had received documentation from the tribunal but had given it all to the Independent Advice Centre who were helping her with her claim to the tribunal but that she did not keep copies of the documents.

She then told the tribunal that the Independent Advice Centre returned the original documents to her once they had processed them.

She then told the tribunal that she had received no documents from the tribunal after Christmas 2010 and that she was not dealing with the Independent Advice Centre after that date.

However, when Mr Grainger went through the documents she had with her at the Review Hearing, it became clear that the claimant had received the documentation which had been sent to her by the tribunal in relation to her claim against the first respondent including the tribunal’s letter of 27 April 2011 and the tribunal’s decision of 9 May 2011 dismissing her claim against the first respondent. It also became clear that she had received written communications from the Independent Advice Centre until March 2011. The claimant then accepted that she had received documentation from the Tribunal and the Independent Advice Centre but claimed that she did not realise what the documentation was because she did not have the time to get help in getting it translated as she was working. This evidence was inconsistent with her son’s evidence, under cross-examination, that the claimant usually showed him the letters she had received from the Independent Advice Centre and the Tribunal, that she opened them in his presence and that he could understand parts of them.

19. As the claimant’s application for an extension of time was based on the assertion that she had not received the tribunal’s decision of 9 May 2011 dismissing her claim against the first respondent and as it is clear that she had received it, the tribunal is not satisfied that it would be just and equitable to extend the time limit to make an application for a review of the tribunal’s decision dismissing her claim against the first respondent. Her application for a review of the decision dismissing her claim against the first respondent is dismissed and the decision is confirmed.

Notice of the proceedings leading to the decisions.

20. Even if the tribunal had extended the time limit, it would, nevertheless, have refused the claimant’s application for a review of the tribunal’s decision dismissing the claimant’s claim against the first respondent, on the ground that she did not receive notice of the proceedings leading to the decision. That is because, as the claimant eventually accepted, she had received the documentation sent by the tribunal in relation to her claim against the first respondent.

21. In relation to the tribunal’s decision dismissing the claimant’s claim against the second respondent, the tribunal is satisfied that the claimant received all documentation from the tribunal in relation to her claim against the second respondent, apart from the tribunal’s letter of 26 May 2011 requiring her to attend a Case Management Discussion on 2 August 2011 and the decision of 16 June 2011 dismissing her claim against the second respondent. Those two documents were returned to the tribunal undelivered, on 20 July 2011, because the claimant had failed to notify the tribunal that she had changed her address. However the tribunal is satisfied that the decision dismissing her claim against the second respondent was provided to the Equality Commission who were acting on her behalf at the Case Management Discussion which took place on 28 June 2011. In those circumstances, the tribunal does not consider that it would be appropriate to revoke the tribunal’s decision dismissing her claim against the second respondent on the ground that she did not receive notice of the proceedings leading to the decision and that decision is confirmed.

The interests of justice

22. Although the Equality Commission indicated that the claimant and respondents had entered into compromise agreements which did not comply with the relevant statutory provisions and were therefore invalid, the tribunal is not satisfied that any party purported to enter into a compromise agreement. The tribunal is satisfied that the issue is whether the claimant withdrew her claims validly or at all.

23. The claimant accepted that she signed the withdrawal section of the letter dated 30 March 2011 on 8 April 2011. However she denied that it had been sent to her prior to 8 April 2011. She claimed that Mr Allison, the first respondent’s Northern Ireland Contracts Manager, gave it to her towards the end of her shift in Argos on 8 April 2011. She also claimed that Mr Allison pressed her to sign quickly and she did so without having had the opportunity to read the letter or to have it translated for her. The first respondent’s case was that Mr Allison met with the claimant on 8 April 2010 to get identification documents from her following her re-employment. It was the claimant who had the letter with her together with Housing Benefit documentation which she needed the first respondent, as her employer, to sign. The claimant showed Mr Allison where the Housing Benefit documentation had to be signed and then asked him questions about the 30 March 2011 letter. Mr Allison answered the claimant’s questions and the claimant then signed and dated the withdrawal section freely and he took the letter and Ms Idusogie sent it to the tribunal with her e-mail of 8 April 2011. In relation to the handwritten withdrawals against the first respondent and the second respondent, which were on sheets of notepaper, there was no suggestion that the claimant had written the contents. What was contended was that she had signed them. The claimant accepted that the signatures on both handwritten withdrawals were very similar to her signature. However, the claimant claimed that she would never sign unofficial pieces of paper and denied that she had ever seen or signed them.

24. There were so many inconsistencies in the evidence by and on behalf of the claimant, examples of which are set out below, that the tribunal could not be satisfied that the claimant had signed the first withdrawal (8 April 2011) under pressure, without understanding what she was signing or that she had never seen or signed the two handwritten withdrawals. In those circumstances the tribunal was not satisfied that the interests of justice required the tribunal’s decision dismissing the claimant’s claim against the second respondent to be revoked and it is confirmed. For the same reasons, even if the tribunal had extended the time limit to review the decision dismissing her claim against the first respondent, the tribunal would not have been satisfied that the interests of justice required the decision to be reviewed.

25. The inconsistencies in the evidence by and on behalf of the claimant in relation to documentation have already been set out at paragraph 18 above.

26. Although the claimant told the tribunal, in her own evidence, that she had never seen the first respondent’s letter of 30 March 2011 until Mr Allison asked her to sign it on 8 April 2011, she accepted in cross-examination that the letter had been sent to her and that she had it with her, together with paperwork relating to housing benefit, when Mr Allison spoke to her on 8 April 2011. The claimant accepted that she gave Mr Allison the housing benefit paperwork because she needed to have it signed by her employer. She also accepted that it was she who showed the letter of 30 March 2011 to Mr Allison because, although she could understand part of it, she could not understand all of it. When Mr Grainger suggested to her that she had asked Mr Allison a number of questions about the letter, the claimant stated that she had only asked one question about the letter. The claimant then immediately reverted back to her earlier evidence that Mr Allison had brought the letter of 30 March 2011 to her on 8 April 2011.

27. Although the claimant told the tribunal, in her own evidence, that she had been pressed by Mr Allison into signing the withdrawal quickly, under cross-examination, she told the tribunal that she signed it because it happened quickly and she was confused. She then told the tribunal that because it happened quickly she signed without thinking much about it. When Mr Grainger put to the claimant that she had not been pressed or rushed by Mr Allison and that he had taken time to explain the letter to her, the claimant accepted that he had and then stated that she signed because she felt pressed for time, as it was near the end of her shift and she still had plenty of work to finish.

28. In relation to the signature on the handwritten withdrawal against the first respondent, the claimant told the tribunal that the first respondent must have glued her signature to the paper. When the claimant was shown the original withdrawal, she accepted that her signature had not been glued on the paper but claimed that she had never seen the original before. However the claimant later stated that she had been shown it by the Equality Commission before the Case Management Discussion started on 28 June 2011.

29. Although the claimant’s son, Mr Olah, confirmed, in answer to his mother, that she had not signed the handwritten withdrawals, the tribunal is satisfied that he was not present when the handwritten withdrawals are alleged to have been signed. Mr Olah also accepted, under cross-examination from Mr Grainger, that he could not say whether his mother did or did not sign them.

______________________________________

E McBride CBE

President

Date and place of hearing: 16 and 19 September 2011, Belfast

This decision on review was entered in the register and issued to parties on:

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	Industrial Tribunals Northern Ireland Decisions
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Industrial Tribunals Northern Ireland Decisions