Fay v An Tearmann Project Ltd & Anor [2006] NIIT 273/06 (5 May 2006)

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URL: http://www.bailii.org/nie/cases/NIIT/2006/273_06.html
Cite as: [2006] NIIT 273/6, [2006] NIIT 273/06

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 273/06

    CLAIMANT: Eimear Fay

    RESPONDENTS: 1. An Tearmann Project Limited

    2. Seamus Donnelly

    DECISION ON APPLICATION FOR REVIEW

    I hereby revoke the decision not to accept that part of the claim which relates to the claimant's claim for unfair dismissal and holiday pay pursuant to the Working Time Regulations (Northern Ireland) 1998; and I direct that the said claims of the claimant for unfair dismissal and holiday pay pursuant to the Working Time Regulations (Northern Ireland) 1998 should be accepted.

    Constitution of Tribunal:

    Chairman: Mr N Drennan QC

    Appearances:

    The claimant was represented by Mr S McGrath, Solicitor, of PA Duffy & Co, Solicitors

  1. The claimant presented a claim form to the tribunal on 1 March 2006. The complaint of unauthorised deduction from wages was accepted and allocated the above case reference number. However, the claim of unfair dismissal was not accepted, as the claim did not include all the relevant information, namely, the claimant's date of birth in accordance with Rule 1(4)(c) of the Industrial Tribunals Rules of Procedure 2005. Further, the claim for holiday pay pursuant to the Working Time Regulations (Northern Ireland) 1998 was not accepted, as the claim did not include all the relevant required information in respect of the details of the claim in accordance with Rule 1(4)(g) of the Industrial Tribunals Rules of Procedure 2005.

  2. By letter dated 29 March 2006, the representative for the claimant made an application for a review, pursuant to Rule 34(1) of the Industrial Tribunals Rules of Procedure 2005, on the grounds that the interests of justice require such a review and that the said decision not to accept the claim for unfair dismissal and holiday pay pursuant to the Working Time Regulations (Northern Ireland) 1998 should be revoked and the said claims should now be accepted.

  3. Mr McGrath acknowledged that a claimant was required to provide her date of birth, pursuant to Rule 1(4)(c) of the Industrial Tribunals Rules of Procedure 2005; but stated that, in filling out the claim form, the claimant had overlooked providing the said information on the said form. He confirmed that the claimant's date of birth is 18 August 1981. He pointed out that, save for this omission, the claimant had provided all other details in relation to her said claim for unfair dismissal in accordance with the said Rules of Procedure. Although, the claimant's date of birth is relevant to whether the tribunal has jurisdiction to hear the claimant's claim for unfair dismissal, and is required information under Rule 1(4)(c) of the said Rules of Procedure, I am satisfied that, in the circumstances, in the interests of justice, the said decision not to accept the claim for unfair dismissal should be revoked and now be accepted. If it had been necessary to do so, I would also have accepted that the omission of the claimant's date of birth was an administrative error on her part and would have provided grounds for revoking the said decision on review (see Sodexho Limited -v- Gibbons (2005) IRLR 836).

  4. In the claimant's claim form she stated "I also believe my employer was in breach of the Working Time Regulations". She provided no other details of the said claim, nor did she tick the box in relation to holiday pay in the said form. Under Rule 1(4)(g) of the Industrial Tribunals Rules of Procedure 2005, a claimant is required to give details of the said claim. The said claim was not accepted on the grounds that the claimant had not in the above circumstances complied with the said rule. It can be argued that the rule requires a claimant to state, on the said claim form, something more than merely referring to the name of the claim to be made. In a Decision of the Employment Appeal Tribunal in the case of Grimmer -v- KLM Cityhopper UK (2005) IRLR 596, which, although not binding in this jurisdiction, is of persuasive authority, Judge Prophet made it clear that a wide interpretation should be given to the requirement to provide details of a claim; and, in particular, where on the basis of what has been stated in the claim form a respondent can obtain, if necessary by order, additional information, as the case proceeds through the system. In the circumstances, I am therefore satisfied that, in the interests of justice, having regard to the said Decision in Grimmer -v- KLM Cityhopper UK, the decision not to accept the claimant's claim of holiday pay pursuant to the Working Time Regulations (Northern Ireland) 1998 should be revoked and the said claim should be accepted.

  5. Mr McGrath pointed out that in paragraph 6.3 of the claim form the claimant in error had indicated that she worked 25 hours each week. He stated that this should have stated 35 hours each week.

  6. Mr McGrath further accepted that the second respondent was at no time the employer of the claimant and therefore not a proper party to any of the claims made by the claimant on foot of his said claim form. I therefore ordered that the second respondent should be dismissed from these proceedings.

    7. Chairman:

    Date and place of hearing: 5 May 2006, Belfast

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2006/273_06.html