Cass v AMT - SYBEX LTD [2009] NIIT 4338

THE INDUSTRIAL TRIBUNALS

PAR Ref: 020/09

Case Ref: 4338/09

PAR Ref: 155/09

CLAIMANT: Linda Mary Cass

RESPONDENTS: 1. AMT – SYBEX LTD

2. John Murphy

3. Paul Reynolds

4. Tom Devlin

5. Brian Mitchell

DECISION ON CLAIM REJECTION REVIEW

(i) The claimant lodged two claims to the tribunal. The first claim (which was given the PAR Ref No 020/09) was rejected in full and was therefore never served on the respondents.

(ii) The decision rejecting the first claim, is revoked in the interests of justice, save for the claims set out in the last four lines of page 12 of the claim form namely -

“failed common duty of care”

failed to provide safe workplace;

safe work colleagues etc

negligent”

as the tribunal does not have jurisdiction to determine them.

(iii) The first claim will now be served on the respondents in accordance with Rule 2(2) of the Industrial Tribunals Rules of Procedure 2005 and they are entitled to 28 days to lodge responses to the first claim.

(iv) The claimant’s second claim was accepted in part and given the case reference no 4338/09 and rejected in part and given the PAR Ref No 155/09. It was served on the respondents. The response on behalf of the first respondent was accepted. The response on behalf of the other respondents was rejected. The first respondent’s response to the second claim cannot be accepted as a response to the first claim. A separate response must be lodged in respect of the first claim.

(v) The second, which is essentially a duplicate of the first claim, is dismissed to avoid confusion in light of the duplication.

(vi) The dismissal of the second claim will not affect the claimant’s entitlement to have the first claim heard and determined by the tribunal.

Constitution of Tribunal:

President: Miss E McBride (sitting alone)

Appearances:

The claimant appeared in person on 23 June 2009 with her husband.

Ms S McGranaghan, Solicitor, of O’Reilly Stewart Solicitors appeared on behalf of the claimant on 18 November 2009.

As this was the review of a claim rejection and part rejection, the respondents were not notified of the Review Hearing.

REASONS

The claimant’s first claim

1. The claimant lodged her first claim on 23 January 2009. It was given the PAR Ref No: 020/09. The claimant identified her claim at paragraph 7.1 of the claim form as:

§ breach of contract;

§ failed own grievance procedures;

§ failed to investigate (detriment);

§ failed duty of care.

The claimant provided details of her claim at paragraph 7, pages 11-12 of the claim form.

2. By correspondence, dated 18 February 2009, the claimant was notified that her claim, which was treated as a claim for breach of contract, was rejected as it appeared from the detail of the claim that she was still employed. This claim was not therefore served on the respondents. The claimant was notified that she had the right to apply for a review or an appeal of that decision to reject her first claim.

3. By correspondence dated 25 February 2009, the claimant sought a review of the decision to reject her first claim in the following terms:-

“Further to the tribunal’s letter of 18 February 2009 I am returning same for listing. My plea was not listed under the correct heading and I seek a review of same. I will have legal representation for this case and they inform me it will go under prevention of less favourable treatment legislation plus an additional detriment. I have amended the form to reflect this and would ask you to pass it on to the relevant person.”

4. Having considered the representations of the claimant, I am satisfied that she had incorrectly labelled the claims she was making because of conflicting advice she had received from two different sources. However, she had given the details of her claims. I am satisfied from the claimant’s representations to me on 23 June 2009 and from Mr McGranaghan’s representations to me on 18 November 2009 that the claims the claimant intended to make are:-

(i) less favourable treatment of the claimant by the respondent on the ground that the claimant is a part-time worker – Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000, as amended; and

(ii) unlawful detriment under Regulations 7(2) and 7(3)(a)(i) of the said Regulations on the ground that the claimant has brought proceedings against the employer under the above Regulations.

(iii) unlawful deductions from wages.

I am also satisfied that the claimant set out the details of those claims at paragraph 7 of the claim form. In those circumstances I am satisfied that it is in the interests of justice to revoke the decision rejecting the first claim save for the claims set out in the last four lines of page 12 of the claim form which state:-

“failed common duty of care

failed to provide safe workplace

safe work colleagues etc

negligent”.

That is because I am not satisfied that an industrial tribunal has jurisdiction to hear those claims. This first claim form, which will now be given a case reference number, will be served on all the respondents in accordance with Rule 2(2) of the Industrial Tribunal Rules of Procedure 2005 and the respondents will be notified that they have 28 days to lodge their responses.

The claimant’s second claim

5. On 2 March 2009, the claimant lodged a second claim form dated 25 February 2009. It is identical to the first claim form except for paragraph 7.1 at which the claimant identified her claim as “prevention of less favourable treatment and additional detriment”.

6. By correspondence dated 28 April 2009, the claimant was informed that her claim had been treated as complaints of:-

(i) failure to pay wages (unauthorised deduction from wages);

(ii) breach of contract (non payment of other benefits); and

(iii) prevention of less favourable treatment and additional detriment.

The claimant was notified that her complaint of failure to pay wages (unauthorised deduction from wages), had been accepted and allocated the case reference number 4338/09 but that her claims in respect of breach of contract (non payment of other benefits) and prevention of less favourable treatment and additional detriment were rejected. The claimant was also notified that she had the right to apply for a review or an appeal of the decision rejecting these claims which were given the PAR Ref 155/09.

7. On that same date the respondents were sent copies of the second claim form and the letter of 28 April 2009 to the claimant, referred to at paragraph 6 above. The respondents were notified that they had until 26 May 2009 to lodge their responses. On 5 May 2009 the first respondent notified the Tribunal Office that the second respondent had not been employed by them for some time and that they do not have a forwarding address for him.

8. On 21 May 2009, a Chairman granted an extension of time for the first respondent to enter a response to the second claim to 9 June 2009 following correspondence dated 18 May 2009. No extension was granted to the other four respondents. On 8 June 2009, a response was lodged on behalf of all five respondents. The second, third, fourth and fifth respondents were notified that the response was out of time in respect of them and had therefore been rejected.

9. By correspondence dated 26 May 2009, the claimant sought a review of the decision to reject her second claim form in part in the following terms:-

“Further to the letter received from your Office regarding the above claim, I wish to state that this claim is related to an ongoing claim of discrimination/victimisation (claim number 07/08) and I would ask the tribunal to accept this claim in totality. As the hearing for this has run well over four weeks it would be too lengthy a process to include everything on the form.

You have presently pre-accepted it in part under reference number 155/09.”

10. By correspondence dated 22 June 2009, the second, third, fourth and fifth respondents sought a review of the decision to reject their response to the second claim. Before that application could be dealt with, the claimant’s application to review the decision to reject her first claim in full, and her second claim in part, was listed for this review hearing.

11. The second claim, is essentially a duplicate of the first claim which has now been accepted. I therefore dismissed the second claim to avoid the inevitable confusion which will be caused to the parties if the two claims are left to be progressed side by side. For the avoidance of any confusion I also make it clear that the fact that I have dismissed the claimant’s second claim will not prejudice her right to have the first claim which has now been accepted, determined.

12. As I have dismissed the claimant’s second claim, there will be no need to consider the review application by the second, third, fourth and fifth respondents to have the decision rejecting their responses revoked. Although the first claim is essentially the same as the second claim, all the respondents are required to lodge responses to the first claim form if they intend to defend it within 28 days of the issue of this decision. They may lodge separate responses or one response for all of them. If they lodge one response to cover all of them they should make it clear that they are doing so.

13. The claimant indicated during the course of the review hearing that the date of 8 December 2008, which is stated at the first two paragraphs of section 7, page 11 of the first claim form, should be 8 January 2008. She also indicated that the date of 8 January 2009 at paragraph 4, section 7, page 11 may have been 15 December 2008. She indicated that her husband had completed the form and that he may have stated these dates incorrectly. I explained to the claimant that while I was recording these matters, any application to amend the claim form in respect of these dates would have to be considered after the respondents had the opportunity to lodge responses. If the respondents have no objection to the amendments they can be amended without a further hearing. If the respondents object to the amendments, a hearing will be required to consider and determine the application.

14. I announced my decision accepting the first claim and dismissing the second claim at the end of the Review Hearing on 23 June 2009. Before the decision was issued, the claimant wrote to me, by letter dated 3 July 2009 which is attached hereto. In that letter she confirmed that certain dates were incorrect as set out at paragraph 13 above. She also made reference to an “amendment which would then also include the Sex Discrimination Act 1975”. She also asked for figures which “were provided on an amended schedule of loss to the respondent on the last day of the hearing” of an earlier claim to be included in this claim. A copy of that letter of 3 July 2009 is attached to this decision.

15. As the claimant had attended the Review Hearing on 23 June 2009 at very short notice due to a misunderstanding with regard to the date, I directed that the Review Hearing be reconvened to give the claimant the opportunity to address me in relation to those claims. The reconvened Review Hearing was arranged for 27 July 2009. It was postponed at the request of the claimant because she was waiting for Tesco to decide whether they were going to represent her and because she would be on holiday. The reconvened Review Hearing was relisted for 22 September 2009. It was postponed again at the request of the claimant as Tesco were still considering whether they would represent her. It was relisted for 15 October 2009. It was postponed against at the request of the claimant to enable Tesco to instruct a Solicitor and barrister on her behalf. It was relisted for 29 October 2009 but was postponed again to enable the claimant to visit a gravely ill relative. It was relisted for 18 November 2009 and proceeded on that date.

16. Mr McGranaghan appeared on behalf of the claimant at the reconvened Review Hearing on the instructions of Tesco Insurers. The claimant was not present. Mr McGranaghan indicated that Tesco Insurers were representing the claimant in respect of the unlawful deduction of wages claim only. Mr McGranaghan indicated that he was not in a position to assist me in pointing to anything in either the claimant’s first or second claims which could be identified as a claim for sex discrimination. He accepted that if the claimant wished to have a claim for sex discrimination or a claim in respect of the “30 hour element of the WFTC for the year 2007-2008 and 2008-2009”, included in her claim she will have to make a specific amendment application which will then be considered at a Pre Hearing Review once the respondents have been given the opportunity to lodge their responses.

17. As the first claim has now been accepted, the parties will be notified that the services of a conciliation officer are available to them.

18. As soon as the respondents have had the opportunity to lodge responses to the first claim form, a Case Management Discussion will be arranged to progress this claim to hearing unless an amendment application has been made in which case a Pre Hearing Review will be arranged to consider the amendment application and any objections to it.

______________________________________

E McBride

President

Date and Place of Hearing: 23 June 2009 and 18 November 2009, Belfast

Date decision entered in register and issued to parties:

31 Mountpleasant Road
Newtownabbey
Co-Antrim
N-Ireland
3T37 ONQ

F.A.O The President
Industrial Tribunal and Fair Employment Tribunal
Killymeal House
Ormeau Road
Belfast

3rd July 2009

Dear President
I apologize for the delay in forwarding the amendments agreed at the last cmd meeting but I had to contact Tesco Legal department and the E.O.C. After speaking to Tesco Legal dept it would appear as the 2nd ET1 form is an extension of the first form it should continue under the same laws too. This amendment would then also include the Sex Discriminaton Act 1975. The 2nd ET1 form which was completed by my husband on my behalf when I was ill has to be amended as follows.

1. Paragraph I and 2 on Page 11 should read 08/01/08.
2. Paragraph 4 beginning To my horror should read 15/12/08.
3. Paragraph 3 — date should read 08/01/08.

Since the first hearing certain information concerning this ET1 form has come to light and I would like to make the tribunal aware of these.

1. The issue of confidentiality has been accepted by BUPA as a genuine breach on the company’s part and they have received a copy of BUPA’s letter dated 30/01/09.
2. I have now received the company’s policy on harassment but never the E.O.C questionnaires etc. This was made known at the first hearing.
3. The company in their letter of 9th Jan 2009 state they have no staff handbook for Belfast staff, only our English counterparts. This seems to conflict with information already provided.
4. I have discovered through the pension provider I did receive a salary increase for the year Feb 2008, and have received a letter from the company stating no-one received any increase for Feb 2009.

I would like to conclude that since the first hearing it has only come to light in the last few months that I have lost the 30hour element in WFTC for the year 2007-2008, and
2008-2009. In order to bring my national insurance pension contributions also up to date

I would have to pay a sum of money too. These figures were provided on an amended schedule of loss to the Respondent on the last day of the hearing when we were called at their request to do verbal submissions. Chairman Green suggested that I ask them to accept these figures as part of this bearing and they refused, so I would like to ask the tribunal to include these as part of this second claim.

Yours sincerely

Mrs Linda Cass

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cass v AMT - SYBEX LTD [2009] NIIT 4338_09IT (09 December 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/4338_09IT.html Cite as: [2009] NIIT 4338_9IT, [2009] NIIT 4338_09IT

Industrial Tribunals Northern Ireland Decisions