UD363/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms E. Kearney BL

Members:     Mr T. L. Gill

                     Ms H. Henry

heard this claim at Galway on 19 November 2013

Representation:

Claimant:        

         Mr Brendan Glynn BL, instructed by Mr Shane Sheridan,

         McInerney Solicitors, Cleggan House,

         46 Eyre Square, Galway

Respondent:   

                     Ms Breege McCaffrey, D. M. O’Connor & Co, Solicitors

         Cross Street, Galway

The determination of the Tribunal was as follows:-

Determination:

This claim results from an employment relationship that ended in January 2012 with the Workplace Relations complaint from being received by the Tribunal on 22 February 2012. Due to the volume of cases lodged with the Tribunal the hearing notice for this hearing did not issue until 22 October 2013. On 31 October 2013 an officer in the Tribunal’s administration phoned the office of the claimant’s representative as the notice of hearing sent by registered post to the claimant had been returned marked “not called for”. The officer’s note of this conversation records that the representative told the officer that the claimant was abroad until May 2014 and that the representative was to make an application for a postponement. As the Tribunal was not to sit in Galway again before 18 November 2013, the day before this hearing, it was intended to make the application at another venue.

On 6 November 2013 the respondent’s representatives wrote to the Tribunal to state their objection to any postponement application as it was their belief that the claimant had emigrated to New Zealand in September 2013 and that she had sufficient time in which to organise her return for this hearing.

The postponement application was made in Dublin on 14 November 2013; both parties were represented by their respective town agents. At this application it was asserted on behalf of the respondent that the claimant had been back in the jurisdiction in September 2013. The division of the Tribunal which heard the application refused to grant the postponement on the basis of the lateness of the application and the lack of notice being given that the claimant was in New Zealand.

At this hearing the respondent’s representative sought to renew the postponement application

again on the basis that the claimant was in New Zealand and was mitigating her loss. The length of time off work to return for this hearing along with the cost of travel were also cited as reasons for the application.

It was further asserted on behalf of the respondent that the claimant had been talking of going to New Zealand from some time in 2011. The respondent’s representative suggested that enquiries should have been made with the Tribunal prior to booking the trip to Ireland in September 2013 as these would have revealed the likely time-frame of the hearing date.

The Tribunal in dealing with this unusual application accepts the argument made on behalf of the respondent that the claimant should have made enquiries of the Tribunal before her trip to Ireland in September 2013. The Tribunal does not routinely specially fix cases without exceptional circumstances, such as extreme ill health.

The Tribunal is satisfied that no valid reason has been shown for the claimant’s failure to prosecute her claim in a timely manner. Additionally there was no evidence that the claimant would be back in the jurisdiction in May 2014. For all these reasons the application for postponement was refused.

The respondent’s representative then made an application that the claim be disposed of on the basis that the claimant had failed to prosecute her claim. In acceding to this application the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 fails for want of prosecution.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

           (CHAIRMAN)