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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Avington v Anthony McDonald AJ's Hair Des... Margaret Gilliland [2013] NIIT 01890_12IT (17 January 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1890_12IT.html Cite as: [2013] NIIT 1890_12IT, [2013] NIIT 01890_12IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1890/12
CLAIMANT: Fionnula Avington
RESPONDENT: 1. Anthony McDonald AJ’s Hair Design
2. Margaret Gilliland
DECISION
The unanimous decision of the tribunal is that the claimant's claim of unfair dismissal is not made out and well-founded and the claimant’s complaint is dismissed, without further Order.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Mr C McIlwaine
Mr J McKeown
Appearances:
The claimant did not appear and was not represented.
The respondents did not appear and were not represented.
THE ISSUE & REASONS
1. The matter was listed for hearing at 10.00 am on 15 January 2013, Notices of Hearing having been sent to the respective parties, dated 10 October 2012. At 10.05 am on the hearing date, the tribunal sat to hear the matter, with others, and noted the non-appearance of the respective parties. No explanation for the non-appearance of the claimant and of the respondents was received by the tribunal. The tribunal made further enquiry and noted that by 2.30pm on the hearing date the position remained the same in that, by that time, the respective parties had not appeared nor were they represented and no explanation for the non-appearance and non-representation of the claimant and respondents was forthcoming.
2. The tribunal proceeded to deal with the matter, as it is entitled to do, on foot of Rule 27 of the Industrial Tribunals Rules of Procedure (2005) (“the Rules of Procedure”) contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The tribunal noted the content of the claimant’s originating claim form, and the respondents’ Notice of Appearance thereto and any other information made available.
THE TRIBUNAL’S DETERMINATION
3. The proceedings had been duly convened and proper notice had been given to both parties to the matter. Notwithstanding this, the claimant was not in attendance before the tribunal nor was she represented, and the respondents likewise. In these circumstances, the tribunal is entitled to proceed with the matter as is provided for by Rule 27(5) & (6) of the Rules of Procedure. On foot of that Rule, the tribunal gave consideration to the originating claim form and to the Notice of Appearance thereto and any other information made available.
4. The tribunal takes the view that it has been provided by the Rules of Procedure with a measure of discretion as to how it ought properly to deal with such cases where a claimant fails to appear or to be represented to make out his or her case. That discretion is contained in Rule 27(5). The tribunal also notes the case of Roberts -v- Skelmersdale College [2004] IRLR69 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 do not impose upon the tribunal any duty of its own motion to investigate the case that is before it nor do the Rules of Procedure impose a duty on the tribunal to be satisfied that, on the merits, the respondent to a case has established a good defence to the claim of the absent claimant. The foregoing Rule confers upon tribunals a wide measure of discretion. The tribunal may adjourn the hearing, may dismiss the application, or may dispose of it in some other way.
5. Accordingly, in this case, the tribunal is entitled to exercise its discretion to dismiss the claimant’s application without having to investigate further the evidence and the merits of the case, after having properly taken heed of Rule 27(5) & (6). Having done so, the tribunal finds that the claimant’s complaint of unfair dismissal is not made out and well-founded and the complaint is dismissed by the tribunal, without further Order.
Chairman:
Date and place of hearing: 15 January 2013, Belfast.
Date decision recorded in register and issued to parties:
