Martinho v Devlin [2007] NIFET 96_05 (12 March 200)


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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Martinho v Devlin [2007] NIFET 96_05 (12 March 200)
URL: http://www.bailii.org/nie/cases/NIFET/2007/96_05.html
Cite as: [2007] NIFET 96_05, [2007] NIFET 96_5

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    FAIR EMPLOYMENT TRIBUNAL

    CASE REF: 00096/05FET

    00669/05

    CLAIMANT: Antonio Miguel Da Cruz Martinho

    RESPONDENTS: 1. Jim Devlin

    2. JSD Recruitment

    DECISION

    The unanimous decision of the Tribunal is that the claimant's complaints are not made out and these are dismissed by the Tribunal, without further Order.

    Constitution of Tribunal:

    Chairman: Mr J V Leonard

    Members: Mr Norney

    Mr Barron

    Appearances:

    The claimant did not appear and was not represented at the Tribunal.

    There was no appearance by or on behalf of the respondents to these proceedings but the first named respondent, Mr Devlin, and a Mr Mallon attended the Tribunal hearing.

    REASONS

  1. By originating claim dated 14 April 2005 and received by the Office of the Tribunals on 19 April 2005, the claimant complained of "wrongful dismissal", contending that he had been employed by the first and second named respondents from 13 May 2004 until 18 March 2005 and that he had been dismissed from that employment. The claimant also claimed unlawful discrimination. There was no response to the claimant's complaints as set out in the claim form by the respondents within the statutory time provided. The matter was then made the subject of an Order under Article 85 of the Fair Employment and Treatment (Northern Ireland) Order 1998 ("the 1998 Order") in which the Vice President of the Tribunals directed, firstly, that the matters which would otherwise fall to an Industrial Tribunal for consideration should instead be heard and determined by the Fair Employment Tribunal, and, secondly, that the claimant's claims in this matter should be heard and considered together.

  2. A Notice of Hearing was issued to the respective parties by the Office of the Tribunals on 20 July 2006 listing the hearing for 10.00am on 5 - 9 February 2007.

  3. Accordingly, the Tribunal had to determine the claimant's claims in the light of the general law and particularly the provisions contained in the Fair Employment Tribunal Rules of Procedure ("the Rules") that are set out in Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.

  4. At the outset of the hearing, there being no appearance at the Tribunal by or on behalf of the claimant by 10.30am, the Tribunal explained to the first named respondent, Mr Devlin, who was in attendance together with his representative, Mr Mallon, the import of rule 8 of the Rules in that the respondents had not presented a response to the claim and were thus not entitled to take any part in the proceedings save in the respect of the matters detailed in rule 8(a)–(d) of the Rules.

  5. The Tribunal was cognisant of rule 23(5) of the Rules and accordingly proceeded to consider any information in its possession which had been made available to it by the parties in pursuance of rule 23(6) of the Rules. Accordingly, the Tribunal gave due consideration to the claimant's claim form. The Tribunal further noted that from the file of correspondence maintained in respect of the case by the Office of the Tribunals there did not appear to have been any communications despatched by the Office to the claimant that were returned to the Office undelivered by the post office. Notwithstanding that fact, from the claimant's claim form it was noted that the only address given by the claimant was an accommodation address which appeared to the Tribunal to be linked to the claimant's employment. The Tribunal noted from the claim form that the claimant appeared to have been dismissed from the stated employment. It was quite probable that the claimant had ceased, since the alleged dismissal, to reside at that accommodation address. Notwithstanding that, the Tribunal had been provided with no other address at which it might endeavour to contact the claimant, nor indeed any other means of establishing any communication with claimant.

  6. That being the case, on foot of the information before it the Tribunal proceeded to reach a determination in the case. Dealing, firstly, with the claimant's claim of unlawful discrimination, the claimant had provided no details whatsoever of that head of claim in his claim form save to tick the box in that claim form indicating that he was alleging that he was unlawfully discriminated against on the grounds of religious belief or political opinion. The onus of proof at the first stage in such claims of unlawful discrimination is upon any claimant to present to the Tribunal such evidential material from which the Tribunal might properly arrive at conclusions of fact from which an inference or inferences of discrimination might properly be drawn (see 'the Barton guidance' as amended in the case of Igen Limited (formerly Leeds Careers Guidance) & Others -v- Wong [2005] IRLR 258). The revised Barton guidance provides that it is for the claimant to prove as a first step, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent or respondents had committed an act or acts of unlawful discrimination. If the claimant does not prove such facts the claimant will fail.

  7. Not having been provided with any evidential material from which the Tribunal might arrive at conclusions of fact from which an inference or inferences of discrimination might properly be drawn, there is no question of the claimant's case moving beyond the first stage. Thus there is no basis upon which any adjudication of the claim in the claimant's favour on those grounds might properly be sustained. Accordingly, on foot of rule 23(5) of the Rules the Tribunal, on the basis of unanimity, feels that the proper course is to dismiss that part of the claimant's claim which relates to unlawful discrimination.

  8. The Tribunal then turned to consider the part of the claimant's claim in respect of "wrongful dismissal". The Tribunal considered the content of paragraph 13 of the claimant's claim form, which the Tribunal notes appears to have been completed on behalf of the claimant in different handwriting to that apparent from the claimant's signature at the end of the claim form. The information provided therein relates to an alleged accident in work accommodation premises which is stated to have resulted in the claimant being hospitalised for a number of days. As a result of this, the claimant has contended that his employment was terminated and that he was asked to leave his work accommodation. Money to fix a shower door alleged to have been damaged at the time of the accident is claimed to have been deducted, so the claim states, with agreement on the claimant's part, from his wages. The Tribunal has noted that the claimant at no point anywhere in his claim form has set out any grounds upon which it is or has been alleged that the respondents or either of them acted in breach of contract nor in any other manner such as might appear to give rise to an infringement of any statutory or common law right or entitlement which might fall under the heading of "wrongful dismissal". The statutory or other rights or entitlements which might have been alleged to be infringed are not in any manner whatsoever clear from a careful reading of the claimant's claim form.

  9. The Tribunal believes that it is reasonable in such a case to expect any claimant to attend or to be represented before the Tribunal in order to elaborate on the details of the claim, failing which the Tribunal will be denied the opportunity to gain the most basic information required potentially to find in favour of the claimant. The Tribunal takes the view that it has been provided by the Rules with a measure of discretion in such matters as to whether or not any case might be adjourned or otherwise dealt with in the manner provided for by the Rules. The Tribunal, further, notes the case of Roberts -v- Skelmersdale College [2004] IRLR 69 where the Court of Appeal in England held that when, as in this case, a claimant fails to attend or to be represented at a Tribunal hearing, the Rules do not impose upon the Tribunal any duty of its own motion to investigate the case that is before it, nor does it impose a duty on the Tribunal to be satisfied that, on the merits, the respondents to such a case have established a good defence to the claim of the absent claimant. Thus the Tribunal is afforded such a discretion in that it may adjourn the hearing, or may dismiss the claim, or may dispose of it in some other way.

  10. Having considered the matter, the Tribunal, by unanimous decision, sees no good reason why the matter ought to be adjourned under these circumstances. Accordingly, as the claimant's complaint of wrongful dismissal is not made out, that complaint is dismissed by the Tribunal, without further Order.

    11. Chairman:

    Date and place of hearing: 5 February 2007

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIFET/2007/96_05.html