McKernan v Lee Lavelle Paul Johnston Department for Employment and ... [2011] NIIT 00492

THE INDUSTRIAL TRIBUNALS

CASE REF: 492/10

CLAIMANT: Brendan McKernan

RESPONDENT: 1. Lee Lavelle

2. Paul Johnston

3. Department for Employment and Learning

DECISION

The proceedings are dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Buggy

Appearances:

The claimant was not present or represented.

1. Lee Lavelle was debarred from participating in the proceedings because he had not presented a response.

2. Paul Johnston was represented by Mr Michael Johnston.

3. The Department was represented by Mr Peter Curran.

REASONS

1. In these proceedings, the claimant makes claims against Lee Lavelle and Paul Johnston in respect of wages, holiday pay, notice pay and redundancy pay.

2. In these proceedings, the claimant also appeals against decisions made by the Department (as a response to statutory applications which the claimant made, to the Department, in its role as the statutory guarantor in respect of certain employment debts).

3. Until Christmas 2009, Lee Lavelle (a respondent to these proceedings), Paul Johnston (also a respondent to these proceedings) and Joe Lavelle (now bankrupt, and formerly a respondent to these proceedings) ran a bus tour company, known as “Belfast City Sight Seeing” in partnership together. That business (“the Partnership”) ceased to operate at the end of 2009.

4. The claimant in these proceedings asserts that, alongside a number of other workers, he was employed by the Partnership until Christmas 2009. At that point, the business folded, and, according to the claimant, he (along with a number of other claimants) is owed wages, holiday pay, pay in lieu of notice and redundancy pay, arising from the collapse of the business.

5. The present proceedings are part of a multiple (group) litigation, in which various claimants asserted that they were ex-employees of the Partnership and, in that capacity, made claims against their former employers, in relation to unpaid wages, unpaid holiday pay, notice pay and redundancy pay. Most of those claimants also made applications to the Department for payments from the national insurance fund (those applications being made within the context of the Department’s role as the statutory guarantor); in respect of unpaid redundancy pay and in respect of certain other employment debts). Those applications to the Department were unsuccessful. Accordingly, in this group litigation, the various claimants also appealed in relation to the Department’s refusals of those applications.

6. The main hearing of this particular case was scheduled to take place over two separate days, on 7 December 2010 and on 20 October 2011. That hearing did indeed begin on 7 December 2010. It was adjourned on that date, and it was scheduled to resume on 20 October 2011.

7. During the December 2010 hearing, it became clear that there was a real question as to whether or not the transfer of undertakings legislation applied in the circumstances of this case (thus, perhaps, absolving the Partnership from liability in respect of redundancy payments). During that segment of the main hearing, it also became clear that there was a real issue as to whether or not the proper deductions had been made from each claimant’s wages, in respect of income tax, and, if not, whether, and to what extent, each claimant had a responsibility in respect of that shortcoming. Accordingly, the completion of the main hearing was postponed, pending enquiries which the Department was to urgently make, regarding the TUPE issue and in relation to the income tax position.

8. Soon after the December 2010 hearing, it was decided that two of the cases in this multiple (including this claimant’s case) would be treated as lead cases. At the same time, it was also decided that a date for the resumption of the main hearing in those two lead cases would be scheduled as soon as the Department’s enquiries had been completed.

9. In due course, 31 May 2011 was fixed as the date for the resumed hearing of those two lead cases.

10. It was unfortunate that there was a gap of about six months between the date of the start of the main hearing and the day in May which was scheduled as the date for the resumption of the main hearing in those cases. However, that delay was unavoidable, because of the need to allow time for the Department’s enquiries to be completed and because of the difficulty in arranging a resumed date of hearing which suited Mr Gillam (the claimant’s solicitor in the other lead case), Mr Michael Johnston, the claimants in the lead cases, Mr Curran and myself.

11. This claimant was not present or represented at the resumed main hearing on 31 May 2011. The reason then given for his non-attendance at that time was that he had conflicting work commitments. I did not regard that reason as a good reason for non-attendance. Nevertheless, I then decided, with the agreement of the Department: (1) not to dismiss these proceedings on account of that non-attendance, and (2) not to proceed with the hearing in the claimant’s absence.

12. The main hearing of the other lead case (Peter Burns, Case Ref: 1247/10) went ahead on 31 May and was competed on that day. The Decision in the Burns case was issued in July 2011.

13. Subsequently, there was a Case Management Discussion, for the purpose of identifying the best procedural way forward in the remaining cases, including this case.

14. As a result of that Case Management Discussion, it was directed that the main hearing of this case would resume on 20 October 2011.

15. During the course of the December 2010 segment of this hearing, the claimant presented oral testimony, and was cross-examined on that testimony. However, in light of the issues which had emerged during the course of that segment of the hearing, I then made it clear to the claimant that he would be expected to provide additional oral testimony in relation to any matters which might emerge from the enquiries which the Department was at that time proposing to make.

16. Mr Curran has informed me that the Department is of the view that there are important discrepancies between the account given by the claimant during his December 2010 oral testimony, and in his application to the Department, on the one hand, and the results of the Department’s subsequent enquires on the other hand. In light of that contention, and in view of the difficult evidential issues which arise whenever employees are paid mainly or solely in cash, I considered it to be of considerable importance that the claimant should either (1) provide additional oral testimony, during the course of this October hearing, in respect of matters arising from the Department’s enquiries; or (2) provide explanations (in his role as his own representative in this case) for any apparent discrepancies.

17. However, as already noted above, the claimant was not present or represented at this resumed hearing.

18. Prior to the October segment of this hearing, the claimant sent a letter to the Office of the Industrial Tribunals, addressed to myself, in the following terms:

“I am unable to attend and wish you to make a decision in my case in my absence. I trust you have looked at everything I have given in as evidence in my case. My illness [is] slowly getting worse. I enclose some more evidence of my illness. I hope you play fair in my case and find in my good favour.”

There was a postscript to the letter, which was as follows:

“Just happy to be in work again doing what I do best. Giving Belfast a good name as a tour guide and helping me on my way.”

19. The letter was accompanied by three documents. First, there was a certificate from the claimant’s GP, advising him to refrain from work for two weeks, from 4 August 2011, because of “Stress Related Symptoms”. Secondly, there was a letter from the claimant’s GP, dated 6 October 2011, in the following terms:

“I write to confirm Mr McKernan suffers from Anxiety and Depression. His work is therapeutic. He has been homeless for 5 years and has drifted from one accommodation to another.”

Thirdly, a medical prescription dated 6 October 2011, in respect of the claimant, prescribing Diazepam tablets, was also enclosed.

20. Paragraph (5) of Rule 27 of the Industrial Tribunals Rules of Procedure is in the following terms:

“(5) If a party fails to attend or to be represented (for the purpose of conducting the party’s case at [the main hearing]) 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.”

21. Accordingly, if the precondition set out in Rule 27(5) exists; three options are available to a Chairman or tribunal. (See below).

22. The Rule 27(5) precondition is that the relevant party must have failed to attend or to be represented at the time and place fixed for the main hearing. In my view, that precondition is applicable even in circumstances in which a party has attended on the first day of the main hearing, if (like this claimant) he fails to attend or be represented at some subsequent day of that hearing. Accordingly, in my view, the Rule 27(5) precondition is met in the circumstances of this case.

23. That precondition having been met, the next question is, what are the available options? Those options are as follows:

(1) to dismiss the proceedings; or

(2) to dispose of the hearing in the absence of the claimant; or

(3) to adjourn the hearing to a later date.

24. As I explained during the course of the 5 October hearing, I have decided not to adjourn the hearing, mainly because of a combination of the following considerations.

25. First, it is important that this case should be resolved speedily. There is a legal principle in favour of speedy disposal of litigation. The time which has elapsed between the date on which the claimant first gave evidence in this case is considerable.

26. Secondly, I am not convinced that there is any adequate reason for the claimant’s
non-attendance. I accept of course, on the basis of the claimant’s GP’s letter, that the claimant is indeed suffering from anxiety and depression. However, I note that he has presented no medical evidence either that he is currently unfit for work, or that he is currently unfit to represent himself at a tribunal hearing. Indeed, the implications of the postscript to his recent letter (as quoted above) are that he was currently at work, at the time of the resumed main hearing.

27. The remaining issue is whether I should dispose of the proceedings in his absence (as he requested me to do, in his recent letter) or whether I should dismiss the proceedings because of his non-attendance.

28. In circumstances in which a claimant has been paid a salary, apparently over lengthy periods, in cash, it is particularly important that a tribunal should have available to it comprehensive oral testimony from that claimant, or (alternatively) that the claimant should be present at the hearing, in his role as his own representative, for the purpose of dealing with any tribunal queries. In particular, I note that in this particular case the Department contends that there are significant discrepancies between the claimant’s account of events as given (during the course of his December 2010 testimony and in his writhen application to the Department) and the account of events which is indicated by the outcome of the Department’s enquiries.

29. Against that background, and for those reasons, I consider it would be inappropriate to dispose of the proceedings without the claimant having been present or represented on 20 October.

30. During the course of the 20 October hearing, Mr Michael Johnston (in his role as the representative of Mr Paul Johnston) urged me to dispose of the proceedings in the absence of the claimant. However, I note that it is not expected that Paul Johnston would be in a position to pay any award which might be made against him. On the other hand, the Department would be liable to make a payment to the claimant in respect of redundancy if the case were to be decided in the claimant’s favour, and I note that the Department has strongly urged me to dismiss the proceedings because of the non-attendance and non-representation of the claimant.

31. Against that background, and for those reasons, I have decided to dismiss these claims. I confirm that, before deciding to dismiss the proceedings, I gave due consideration to all of the information, in the possession of the tribunal, which had been made available to it by the parties to these proceedings.

Chairman:

Date and place of hearing: 7 December 2010 and 20 October 2011, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKernan v Lee Lavelle Paul Johnston Department for Employment and ... [2011] NIIT 00492_10IT (14 December 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/00492_10IT.html Cite as: [2011] NIIT 492_10IT, [2011] NIIT 00492_10IT

Industrial Tribunals Northern Ireland Decisions