Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 552/15

 

 

CLAIMANT: John Baillie-Smith

 

RESPONDENT: EDM Spanwall Facades Limited

 

 

 

DECISION ON A PRE HEARING REVIEW

 

The President's decision is that:-

 

(i) in so far as the e-mail dated 20 March 2015 from the claimant to the tribunal contains additional information with regard to his claim of unfair dismissal, that information can be accepted as additional information;

 

(ii) the claimant's claim is amended to include a claim in respect of wrongful dismissal i.e. breach of contract in relation to notice pay;

 

(iii) the claimant's application to amend his claim to include an additional breach of contract claim, the details of which are set out at paragraphs 4 and 6 of the decision issued to the parties on 24 July 2015, is refused.

 

 

Constitution of Tribunal:

 

President (sitting alone): Miss E McBride CBE

 

 

 

Appearances:

 

The claimant appeared in person.

 

The respondent was represented by Mr P Bloch of EEF Northern Ireland.

 

 

 

1. The issues to be determined at this reconvened Pre Hearing Review were whether the claimant's application to amend his claim form to include a further complaint in respect of breach of contract should be granted and the claimant's application in relation to discovery.

 

2. Having considered the claimant's evidence both direct and under cross-examination, the submissions of Mr Bloch and the claimant and the relevant legal provisions and principles, the President made the decision set out above. Oral reasons were given at the hearing for that decision.

 

Discovery/Additional Information

 

3. After issuing the decision and giving the oral reasons for that decision, the President considered the claimant's application for discovery as set out in an e-mail dated 4 June 2015 from him to Mr Bloch. Discovery was sought in relation to nine matters

 

1. All paperwork supporting actions taken leading to, and resulting in, my dismissal.

 

The claimant accepted that no Order was required in relation to this matter.

 

2. The date of commencement of the suggested investigation into my professional conduct resulting in the disciplinary hearing and the trigger of that investigation given that the timing appears unusual when considered against empirical data and that, whilst hugely prevalent in process, poor performance is not now the preferred vehicle for my exit.

 

The President satisfied that a reply has been provided to that matter.

 

3. The sources/target of enquiry and subsequent enlightenment resulting in a decision to proceed with dismissal, itself the subject of both hiatus and vacillation within the majority of the management team in consideration of my retention.

 

4. Statements describing understanding of any non attendance to any meeting cited in respondent's written response to petition, by the party/parties involved in both the setting of the meeting/s, unilaterally or bilaterally, and the cancellation thereof. Should no notice have been given, a statement as such in verification.

 

The President was satisfied that those matters relate to evidence and no Order was made.

 

5. Statement of verified impact to the business regarding my illness and the costs/losses ascribed thus.

 

No Order was made as the relevance was not established.

 

6. Justification for gross misconduct as the accepted norms are absent from given statements and that which is proffered should have prior process such as evidence of noted cautionary dissatisfaction. I have received none to date.

 

No Order was made as this is a matter of law to be dealt with at the hearing.

 

7. Detail of turnover ascribed and to whom, by what apportionment and costs to company thereof.

 

8. Dates and notes of meetings suggested whereby both contract and performance were allegedly discussed.

 

No Order was made in respect of either application as they relate to the claimant's performance which was not the reason for his dismissal and would lead to a separate inquiry which is not the purpose of the hearing.

 

9. All emails from my EDM account in order that I may assess or counter charges lodged though not specified.

 

In addition to this application, the claimant is ordered to notify the respondent by 23 September 2015 of the specific documents which were in the bundle of 33 pages he was given in advance of the disciplinary meeting and in relation to which he believes there may be e-mails on his EDM account which provide amplification or clarification in relation to those documents. The claimant is also ordered to provide an approximate date for the e-mails together with an indication of the contents of the e-mails sought in general terms.

 

The respondent is then ordered to respond to the claimant's request by 30 September 2015 by either providing the e-mails sought or an explanation as to why they have not been provided. If any further application in relation to this matter is considered necessary by either party it must be made promptly to the tribunal.

 

10. I would appreciate a detailed clarification of my misconduct, not delivered thus far in process.

 

No Order was made in respect of this application as it is not relevant to the claimant's unfair dismissal claim.

 

4. On 20 April 2015 the respondent sought discovery of all documentation within the care and possession of the claimant, either electronically recorded or on paper. No documentation has been provided in response to that application. An Order is made that the claimant provide discovery of all documentation within his care, possession or control either electronically, recorded or on paper by 23 September 2015 relating to this case .

 

Further, in relation to mitigation of loss the claimant is ordered to provide the respondent with details of all other employment for which he has applied or which he has explored together with the applicable remuneration if that was discussed.

 

Date of Hearing

 

5. The hearing will now take place from Tuesday 17 November to Friday 20 November 2015 unless alternative agreed dates are notified to the tribunal by 23 September 2015. The hearing will commence at 12.00noon on 17 November 2015 to enable the tribunal to read the witness statements. Parties and witnesses must be in attendance at that point.

 

6. The parties should liaise and try to agree a timetable to ensure that the cross-examination of witnesses and closing submissions are completed within the allocated time. If the parties are unable to do so the Employment Judge will set the timetable with the parties at the outset of the Hearing.

 

 

Witness Statements

 

7. The time limit for the parties and any witnesses they wish to call to exchange signed and dated witness statements simultaneously is extended to 5.00pm on 28 October 2015.

 

8. A witness statement must be a complete statement of the evidence relating to the issues, in respect of both liability and remedy, in the case, that the witness wishes to give to the tribunal. Witness statements must not contain the parties' submissions or arguments. The parties will be given the opportunity to make submissions at the conclusion of the evidence. A witness will not be permitted to add to his statement without the consent of the tribunal. Consent will only be given where there is good reason for doing so.

 

Witness statements should commence with an introductory paragraph which identifies the witness and explains the relevance of the witness to the claim, eg claimant, line manager, member of interview panel, etc.

 

The statement should then set out the witnesses' evidence. The claimant's witness statement should also include his evidence to support any claim for financial loss. It should also include his evidence of all steps taken to obtain alternative employment. The witness statement should finish with a short summary paragraph.

 

Witness statements may not exceed 5,000 words unless otherwise directed by the tribunal.

 

Bundles

 

9. The time limit for the four bundles of documents and four copies of the folder containing witness statements to be lodged with the Tribunal Office is extended to 12 November 2015.

 

10. The attention of the parties is drawn to the Notice set out below.

 

1. If any party fails and/or is unable to comply with any of the above Orders, any application arising out of such failure or inability to comply must be made promptly to the tribunal and in accordance with the Industrial Tribunals Rules of Procedure 2005.

 

2. Failure to comply with any of these Orders may result in a Costs Order or a Preparation Time Order or a Wasted Costs Order or an Order that the whole or part of the claim, or as the case may be, the response may be struck out and, where appropriate, the respondent may be debarred from responding to the claim altogether.

 

3. Under Article 9(4) of the Industrial Tribunals (Northern Ireland) Order 1996, any person who, without reasonable excuse, fails to comply with a requirement to grant discovery and inspection of documents under Rule 10(2)(d) of the Industrial Tribunals Rules of Procedure 2005 shall be liable on summary conviction to a fine not exceeding Level 3 on the standard scale - £1,000 at 3 September 2007, but subject to alteration from time to time.

 

4. A party may apply to the tribunal to vary or revoke any of the above Orders in accordance with the Industrial Tribunals Rules of Procedure 2005.

 

 

 

______________________________________

E McBride CBE

President

 

 

 

Date and place of hearing: 16 September 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: