THE INDUSTRIAL TRIBUNALS

CASE REF:	1524/16

CLAIMANT:			Csaba Istvan Cseke

RESPONDENTS:		1.	Wright Composites Limited
				2.	Orion Project Services

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that as follows:-

	(1)	The title of the second respondent is ordered to be amended to:-

			‘Orion Engineering Services Ltd’

(2)	The claimant’s claim of unfair dismissal against the respondents, and each of them, is struck-out, pursuant to Rule 18(7) of the Industrial Tribunals Rules of Procedure 2005, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 on the grounds that:-

(a)	the said claim has not been actively pursued by the claimant; and further

(b)	in the alternative, the manner in which the claim has been conducted by the claimant has been unreasonable.

Constitution of Tribunal:
Employment Judge (sitting alone):	Employment Judge Drennan QC
Appearances:
The claimant did not appear and was not represented.
The first respondent was represented by Ms S Cochrane, Solicitor, of Carson McDowell LLP, Solicitors.
The second respondent did not appear; but was represented by Mr K Tudhope, Solicitor, of Ledingham Chalmers LLP, Solicitors, who did not attend in person but provided written representations/submissions, on behalf of the second respondent.

Reasons

1.1	The claimant presented a claim of unfair dismissal against the first respondent on 17 June 2016.  In that claim form he stated, inter alia, he would ‘need a translator Hungarian or Romanian’.  The first respondent presented a response to the claimant’s said claim to the tribunal on 26 July 2016, in which it denied, inter alia, liability for the claimant’s said claim and, in particular, it stated that, at the relevant time it was not the employer of the claimant as the claimant was an agency worker employed by an employment agency at the first respondent’s site. 

1.2	In accordance with the tribunal’s normal case-management procedures, by letter dated 5 September 2016, the claimant was invited to attend a Case Management Discussion on 15 September 2016 to enable the tribunal to make relevant                  case-management directions/orders for the substantive hearing of this matter.  The claimant did not appear and he was not represented at the said hearing, which was held before me.  An interpreter did attend the said hearing at the tribunal’s direction, with the inevitable wasted costs for the public purse by the interpreter’s said attendance.  

	As set out in the Record of Proceedings of the said Case Management Discussion, dated 20 September 2016, which was sent to the claimant by letter dated 22 September 2016, I stated as follows:-

“2.	The claimant did not attend this hearing, although he had been sent a letter dated 5 September 2016 informing him of the date of hearing and where it would take place.  In view of the fact that an interpreter had been arranged, the said letter did not make any reference to use of telephone conference facilities.  The claimant has not made any communication with either the Office of the Tribunals or the respondent’s representative since the date of the said letter informing him of this hearing, dated 5 September 2016.  The claimant’s failure to attend this hearing is all the more serious, given the fact that the tribunal had arranged an interpreter to attend to assist the claimant.  In the circumstances, I directed that a letter be sent to the claimant requiring him to provide to the Office of the Tribunals, within seven days of the date of this Record of Proceedings, an explanation for his failure to attend this hearing.  In the circumstances, I am not prepared to consider the respondent’s representative’s application to strike-out and/or in the alternative to make an ‘Unless Order’ arising out of the claimant’s failure to attend this hearing.  Although the claimant was required to attend the said hearing in person, the tribunal sought to contact the claimant using the mobile telephone number provided by him on the claim form but without success.”

In the said letter dated 22 September 2016, in accordance with the said record, the claimant was asked ‘to provide an explanation within seven days of the date of the Record of Proceedings as to why he failed to attend the Case Management Discussion, as set out in the letter dated 5 September 2016’.

1.3	In Paragraph 3 of the said Record of Proceedings I also stated:-

“A further Case Management Discussion will be required to be arranged in this matter; but I am not prepared to do so, pending a reply by the claimant to the letter referred to above but also in view of the matters set out below.  It is apparent, from the claimant’s claim form and the respondent’s response form that a major issue to be determined by the tribunal in this matter was:-

‘Whether the claimant was employed, at the relevant time, by the respondent or by an agency, whose employees were working at the respondent’s place of business at the relevant time’.”

In the circumstances, and without objection by the respondents’ representative, I decided, at the Case Management Discussion, that it was appropriate to make an Order joining the said agency, without prejudice to the newly-joined party making an application to set aside the said Joinder Order.  

1.4	By an Order, dated 23 September 2016, the second respondent was joined as a party, without prejudice to any application by the newly-joined party to set aside the said Joinder.  A response was presented by the second respondent to the tribunal on 19 October 2016, in which it denied liability for the claimant’s said claim but it also denied, in particular, it was the employer of the claimant, at the relevant time.  In the response form, the second respondent also stated the correct title of the second respondent was:-

			‘Orion Engineering Services Ltd’

At the hearing of this pre-hearing review, I therefore ordered the title of the second respondent be amended to Orion Engineering Services Ltd.

1.5	By letter dated 27 October 2016, the tribunal, at my direction, wrote to the claimant, as follows:-

“I refer to our letter dated 22 September 2016, asking you to provide an explanation for your failure to attend the Case Management Discussion (CMD) on 15 September 2016. 

No reply has been received from you.

An Employment Judge has directed me to remind you to reply to that correspondence by 3 November 2016.  He has also directed me to ask you to confirm that you intend to proceed with your claim, and will attend the CMD the Employment Judge intends to arrange shortly.  In the absence of such confirmation the tribunal will not arrange an interpreter for that CMD.”

The claimant in the said letter was also informed of the assistance on              employment-related matters which could be provided to him by the Labour Relations Agency.

Again no reply was received from the claimant to the said letter.

1.6	By letter, dated 11 November 2016, the tribunal, at my direction, wrote to the claimant, as follows:-

“Please find enclosed pre-hearing review Notice of Hearing for the above proceedings.

Further to previous correspondence in the above matter, including the tribunal’s letters dated 22 September 2016 and 27 October 2016, the Employment Judge, after noting that you failed to reply to the said correspondence or to confirm that you intend to proceed with your claim, the Employment Judge has directed that a pre-hearing review will be arranged, as set out in the Notice of Hearing enclosed, to determine whether your claim should be struck-out on the grounds set out in the said Notice of Hearing.  The Employment Judge has further directed that unless you give notice, in writing, within seven days of the date of this letter that you intend to attend the pre-hearing review, the tribunal will not arrange an interpreter for that hearing.”

There was no response to the said letter by the claimant.  As a consequence the tribunal did not direct the attendance of an interpreter at this pre-hearing review.

1.7	The Notice of Hearing of this pre-hearing review, dated 11 November 2016, which was sent to the claimant and the representatives of each of the respondents by the tribunal stated that the said hearing was to determine the following issues, namely:-

“(1)	Whether the tribunal should strike-out the claimant’s claim on the grounds that the claim has not been actively pursued.

 (2)	In the alternative, whether the tribunal should strike-out the claimant’s claim on the grounds that it is misconceived.

 (3)	In the alternative, whether the tribunal should strike-out the claimant’s claim on the grounds that the manner in which the proceedings have been conducted by the claimant has been unreasonable.”

The said Notice of Hearing and all the earlier correspondence referred to above was sent to the claimant at the address provided on his claim form – none of which was returned to the Office of the Tribunals by the Royal Mail.

1.8	The claimant did not attend this pre-hearing review and was not represented; and, prior to the hearing, he made no application for a postponement of the hearing nor did he provide to the tribunal any reason for his non-attendance at the pre-hearing review.

2.1	The second respondent’s representative, by letter dated 7 December 2016, informed the tribunal he would not be attending the pre-hearing review but he provided detailed and helpful written submissions/representations in relation to each of the issues, the subject-matter of this pre-hearing review, as referred to in the Notice of Hearing.  At this hearing, the first respondent’s representative adopted the said submissions/ representations of the second respondent’s representative, in relation to the first and third issues, namely:-

“(1)	Whether the tribunal should strike-out the claimant’s claim on the grounds that the claim has not been actively pursued.

...

 (3)	In the alternative, whether the tribunal should strike-out the claimant’s claim on the grounds that the manner in which the proceedings have been conducted by the claimant has been unreasonable.”

	Given the dispute between the parties in relation to whether the respondents, or either of them, were the relevant employer of the claimant at the relevant time and, in light of the decision of the tribunal at this pre-hearing review, as set out later in this decision, I decided it was not necessary to further consider and determine the second issue, namely:-

“(2)	In the alternative, whether the tribunal should strike-out the claimant’s claim on the grounds that it is misconceived.”

3.1	In relation to the said first and third issues, the submissions of the second respondent’s representative, which were adopted by the first respondent, as stated above, were as follows, namely:-

“The history of this case demonstrates that the claimant has taken no active steps to pursue his claim apart from submitting his ET1.  Given the fact he was able to raise the claim there is no reason to believe he has either misunderstood the subsequent correspondence from the tribunal or at least was unaware that it merited taking advice.  Accordingly, the claimant has chosen to ignore not only the information of the Case Management Discussion but (as far as the second respondents are aware) the three subsequent letters sent to him by the tribunal as narrated above.

It is respectfully submitted that the claimant’s behaviour demonstrate he no longer has any interest in pursuing his claim and that, in any event, it is not being actively pursued.  It is also submitted that by failing to attend at the Case Management Discussion and separately, ignoring the tribunal’s subsequent correspondence the claimant’s conduct of these proceedings has been unreasonable.

Accordingly the second respondent’s request that the claimant’s claim is struck out in terms of both issues (1) and (3).”

4.1	I am satisfied the claimant, given the history of this matter, as set out in the previous paragraphs of this decision, has not actively pursued his claim and further, in the circumstances, the manner in which the proceedings have been conducted by the claimant has been unreasonable.  Despite correspondence and reminders, as referred to previously, the claimant has made no effort whatsoever to engage in the tribunal’s procedures since presenting his claim form and he has not any hearing, including this pre-hearing review.  In the circumstances, given the above failures of the claimant, I am not satisfied a fair trial is now possible and I conclude that, in the circumstances, it is appropriate and proportionate to strike-out the claimant’s claim on the grounds that the claim has not been actively pursued by the claimant and further, in the alternative, on the grounds that the manner which the proceedings have been conducted by the claimant has been unreasonable.

4.2	The claimant’s claim of unfair dismissal is therefore struck-out.

Employment Judge

Date and place of hearing:	13 December 2016, at Belfast

Date decision recorded in register and issued to parties: