THE INDUSTRIAL TRIBUNALS 

CASE REF:	4125/09

CLAIMANT:	 Peter Cooley		

RESPONDENT:	OCS Security Services		

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal, in this Pre Hearing Review of a Preliminary Issue, is that the claimant is disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”), regarding a minimum period of continuous employment.  The tribunal award a sum of £500.00 costs to be paid by the claimant to the respondent.

Constitution of Tribunal:

Chairman (sitting alone):		Mr Cross	

			
Appearances: 

The claimant was not represented and appeared in person.

The respondent was represented by Ms Best, Barrister-at-Law, instructed by Messrs Weightmans LLP, Solicitors.

Issues

1.	The issue which the tribunal had to determine was: –
“Whether the claimant is disqualified from the right not to be unfairly dismissed by the provisions of Article 140 of the Employment Rights (Northern Ireland) Order 1996 regarding a minimum period of continuous employment. “

Findings of fact

2.   The claimant commenced employment with the respondent in Aberdeen on 19 February 2007.  The claimant left the respondent’s employment in April 2008.  The exact date seems to be uncertain.  He then took up employment with another security business G4S Secure Solutions, where he worked from 17 April 2008 to 10 May 2008.  This job did not work out for the claimant, so he contacted his previous manager in the respondent’s Aberdeen branch.  A job was available which the claimant started in Aberdeen during the latter part of May 2008.

3.	The claimant then sought a transfer to the Belfast branch of the respondent.  Mr Ward his manager assisted him in this and the claimant left Aberdeen on 28 August 2008 to start work in Belfast.  Work was not immediately available but the claimant did restart with the respondent on 17 November 2008.  He was dismissed on 10 December 2008.

The Law

4.	Article 140 of The 1996 Order provides that an employee does not have the right to bring proceedings for unfair dismissal against his employer “unless he has been continuously employed for a period of not less than one year ending with the effective date of termination”.  The effective date of termination in this case is the date that the claimant was dismissed, namely 10 December 2008.  Other than limited exceptions to this rule, for instance, when breaks occur for reasons of strikes or lock outs, there are no exceptions to this requirement of one year’s continuous employment with the respondent.

Decision

5.	The tribunal holds that the break in service of three weeks from 17 April to 10 May 2008 is fatal to the claimant’s claim for unfair dismissal.  His employment with the respondent restarted after the short term of employment with G4S Secure Solutions and he was dismissed on 10 December 2008 and thus does not have the minimum required continuous service of one year.  The claimant’s claim is therefore dismissed.

6.	The respondent sought to apply to the tribunal for an award of costs against the claimant under Rule 40 (2), of the Rules of Procedure set out in Schedule 1 to The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, (hereinafter called “the Rules”).  This Rule allows a tribunal to consider an application for an award of costs against a party to a hearing, who in the opinion of the tribunal, has in conducting the proceedings acted unreasonably, or has brought or conducted proceedings that are misconceived.

7.	In this case the claimant was honest enough to tell the tribunal that he had sought the advice of the Law Centre, who had told him that his claim was flawed by the break in employment. Despite this, he continued with his claim himself.  The respondent wrote two letters to the claimant on 2 and 14 October 2009, pointing out the flaw in the claimant’s case and inviting him, even at that late stage, to withdraw the claim and thus save the costs of the hearing and the air fare from Aberdeen of the respondent’s witness, Mr Ward.  These letters were ignored by the claimant.

8.	In these circumstances the tribunal being satisfied that the claim was, from the outset misconceived, hold that the claimant was unreasonable in pursuing it and that in accordance with the Rules, an award of costs of £500 should be made against him. In making this award the tribunal has taken into account the fact that the claimant is at present unemployed.

9.	The tribunal orders the claimant to pay to the respondent the sum of £500.00 costs.  

Chairman:

Date and place of hearing:  30 October 2009, Belfast

Date decision recorded in register and issued to parties: