THE INDUSTRIAL TRIBUNALS 

CASE REF:	1630/04

CLAIMANT:			Fintan Fitzpatrick

RESPONDENT:	1.	Robert Buckley
			2.	Rock Merchanting Ltd t/a Pulse Fitness
DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claim should not be dismissed.

Constitution of Tribunal:

Chairman sitting alone:	Mr W A Palmer

Appearances:

The claimant did not appear, nor was he represented.

The respondents were represented at the hearing by Mr Robert Buckley, the first named respondent.

1.	The question before the tribunal is whether the claimant’s claim, which is for unfair dismissal, should be dismissed.

To answer this question the tribunal has to decide whether the claimant, in the circumstances set out in the Background and Facts immediately below, has withdrawn his application.

BACKGROUND AND FACTS

2.	The claimant made an application to an Industrial Tribunal in which he claimed unfair dismissal against the respondents.

3.	The respondents entered an appearance.  In a covering letter dated 11 August 2004 to the Office of the Industrial Tribunals (“the office”), the solicitors acting for the respondents stated:-

“The claimant was in fact employed by the second respondent, Rock Merchanting Limited, and we invite the tribunal to strike out the claim against Mr Buckley who is the Area Manager of the second respondent.  We cannot see that the claimant can have any claim for unfair dismissal against Mr Buckley in any circumstances.”

4.	A copy of this letter was forwarded by post on 3 September 2004 addressed to Mr Mallon, one of the principals in the solicitors firm of Fitzsimons Kinney Mallon, who acted for the claimant.  A reminder was sent on 20 September 2004.

5.	Mr Mallon replied by letter dated 22 September 2004 in which he stated, “I confirm this matter will be abandoned”.

6.	On 30 September 2004 the office wrote to the respondents’ solicitors in the following terms:-

“The claimant in the case named above has given notice of the withdrawal of his/her originating application(s).  A copy of the notice is enclosed [this is a copy of the letter dated 22 September 2004 from Mr Mallon and referred to at 5 above].  A tribunal may now dismiss the application(s).

If you wish to make any application to the tribunal before the decision to dismiss is taken, you should do so, in writing, within 14 days of the date of this letter”.

7.	On 6 October 2004 the office wrote to the claimant enclosing Mr Mallon’s letter of 22 September 2004 and requesting that he advise the office, “if you have a representative acting on your behalf and also if you are intending to withdraw your application”.

8.	A letter, dated 26 October 2004 was received by the office from the claimant.  In that letter he states:-

“Further to our telephone conversation today I wish to confirm my intention to continue my case against Robert Buckley.  This is contrary to the letter received by you from Martin Mallon who is not authorised to act on my behalf.

Please amend your records accordingly and advise me of the next stage in the process.  Would you please send me a copy of the correspondence relating to my case to date”.

9.	A copy of this letter was forwarded to the respondents’ solicitors on 23 November 2004 for “information and immediate comments”.

10.	The respondents’ solicitors wrote to the office by letter dated 3 December 2004 in the following terms:-

“Thank you for your letter of 23 November 2004.  We attach herewith copy letter received from Fitzsimons Kinney Mallon dated 22 September 2004.  As solicitors on record on behalf of the claimant it is clear the claim was abandoned.  In the circumstances we believe it would be most unfair for the tribunal to allow this case to be reopened.  The letter from the claimant’s solicitor was absolutely clear.  There was no ambiguity whatsoever and in the circumstances we consider that this claim is quite properly dismissed”.

11.	The office wrote to the respondents’ solicitors on 4 March 2005 in the following terms:-

“I acknowledge receipt of your letter dated 3 December 2004 and have copied same to the claimant for his information.

A chairman of the tribunals has asked me to inform you that the originating application has not yet been dismissed by a chairman.  A hearing will be arranged to consider whether the application should be dismissed.

	You will be notified of the date, time and place of this hearing in due course”.  

12.	The office also wrote to the claimant on that date in the following terms:-

“With reference to the above application please find enclosed copy letter dated 3 December 2004 from the respondents’ representative for your information.

A chairman of the tribunal has asked me to inform you that the originating application has not yet been dismissed by a chairman.  A hearing will be arranged to consider whether the application should be dismissed.

	You will be notified of the date, time and place of this hearing in due course”.

13.	The tribunal sat on 21 October 2005 to determine the question that is set out at 1 above.  The claimant did not appear.  The office attempted to contact him on the telephone number provided on his application and was informed by his mother that he was living in England.  The tribunal decided in the circumstances to hold the hearing in his absence.

14.	In view of the allegations made by the claimant that Mr Mallon had acted without authority in “withdrawing” the claim, the office contacted Mr Mallon’s office on 19 October 2005 to say that the case was listed for hearing on 21 October 2005 informing them that the claimant was alleging that the letter, dated 22 September 2004, was written without authority.  Mr Mallon was on holiday.  Mr Mallon was not present on the date of hearing nor was there anyone present from his office.

THE RELEVANT RULE

15.	The relevant rule governing the withdrawal of proceedings before an industrial tribunal is Rule 25, which is contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  That rule provides as follows:-

	“Withdrawal of proceedings”.

	Right to withdraw proceedings

	25.
	(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 claim is withdrawn, proceedings are brought to an end against the respondent on that date and the tribunal or chairman shall dismiss the proceedings.  The proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed).  

(5)	The time limit in paragraph (4) may be extended by a chairman if he considers it just and equitable to do so”.

Under the rule a claimant may withdraw all or part of his or her claim at any time.  This may be done orally at a hearing or in writing.  To withdraw in writing the claimant informs the office of the claim or parts of it that are to be withdrawn and specifies, in a case such as this one against which respondents the claim is being withdrawn.  Where written notice is given the withdrawal takes effect on the date the office receives the notice.  Where the whole claim is withdrawn the proceedings are brought to an end and the tribunal or chairman shall dismiss the proceedings.

The case under consideration is concerned with whether there has been a withdrawal of the claim in writing; it is not concerned with an oral withdrawal at a hearing.  Under Rule 25 the withdrawal of a claim may be made in writing by informing the office, in writing, of the claim, or parts of it, that are to be withdrawn; also the notification must specify against which respondents the claim is being withdrawn.  Withdrawal takes effect on the date the office receives the notice of withdrawal.  In a case where the whole claim is withdrawn, proceedings are brought to an end and the tribunal or chairman must dismiss the proceedings; there is no option but to do so.

MR BUCKLEY’S SUBMISSIONS

16.	(a)	From the point of view of the respondents once the letter of 22 September 
2004 was received it was determined then that the case had been abandoned by the claimant

(b)	Mr Buckley was asked by the tribunal whether he wished to comment on the words “will be” in the solicitors’ letter.  He submitted that where the letter states, “I confirm this matter will be abandoned”, that means that the claim “has been withdrawn”.

(c)	The tribunal asked Mr Buckley whether the words “will be” in the letter of 22 September 2004 could be construed as a possible statement of future intent, as opposed to a statement of withdrawal.  He submitted that the matter is clearly written and he would determine it as a statement of withdrawal and that the claim was withdrawn when the tribunal received the letter.

THE DECISION

17.	Before the tribunal is required, by Rule 25, to dismiss the proceedings it must be satisfied that there has been a genuine and clear withdrawal of the whole claim.  The tribunal will consider this carefully.

The ball began to roll when the respondents’ solicitor wrote to the office on 11 August 2004 inviting the tribunal to strike out the claim against the first-named respondent.  The solicitors did not seek to have the whole of the claim struck out.  A copy of the letter of 11 August 2004 was forwarded to the claimant’s solicitors by the office.  The solicitors replied by the letter dated 22 September 2004 to confirm that “this matter will be abandoned”.  It is not clear to the tribunal what precisely what was meant by the words used.  They are, at least, ambiguous, in the tribunal’s view.  They could, in the tribunal’s view, mean, at least, four things, namely:-

(a)	Taken in the context of the respondents’ letter of 11 August 2004, that the claim against Mr Buckley is abandoned or withdrawn;

	(b)	That the claim against both respondents is being abandoned or withdrawn;

(c)	That the claim against Mr Buckley will be abandoned or withdrawn at some time in the future, or;

(d)	That the claim against both respondents will be abandoned or withdrawn at some time in the future.  

In the tribunal’s view a letter withdrawing a claim must be in reasonably clear terms.  The letter of 22 September is not those terms, and the tribunal is not prepared to hold that it is a letter of withdrawal of the claim against Mr Buckley or both respondents.

Further the tribunal accepts the claimant’s assertion that his solicitors did not have authority to withdraw his claim.  It has seen nothing nor has it heard anything to suggest that the claimant’s assertion n this regard is wrong.  The tribunal would not be prepared to hold that a letter of withdrawal written without authority is a letter withdrawing proceedings.

For the reasons stated the tribunal holds that the proceedings were not withdrawn and are therefore alive.  The decision of the tribunal is that the claim should not be dismissed.

Chairman:

Date and place of hearing:	21 October 2005, Belfast.

Date decision recorded in register and issued to parties: