Mr L Zdroana v PMP Recruitment: 1403093/2020
JUDGMENT
The claim is struck out.REASONS
[1]By a Claim Form dated 19 June 2020, the Claimant complained of having been unfairly dismissed. The Form purported to include another element; “gas lightingfalse accusation under sexual harassment”. When taken with the contents of box 8.2, the Claimant appeared to be complaining that an allegation of sexual harassment had been made against him by a colleague incorrectly which caused to have been dismissed unfairly. Accordingly, the Claim Form did not appear to contain a separate or further cause of action.[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years’ service to make an unfair dismissal complaint. The Claimant was employed by the Respondent for less than two years and was therefore not entitled to bring such a complaint.[3]On 20 July, the Tribunal warned the Claimant of the possibility of the striking out of his complaint of unfair dismissal for that reason. He was given until 27 July to give reasons why it should not have been struck out. That letter prompted a great deal of correspondence from him, none of which appeared to address the question posed in the letter of 20 July.[4]By a further letter dated 10 September, the Claimant was given until 17 September to address the question succinctly and directly. He was informed that, unless he did so, the claim of unfair dismissal was to have been dismissed.[5]That letter prompted a significant amount of further correspondence to the Tribunal and others (the Home Secretary, Her Majesty the Queen and the President of the EU), copies of which were sent to the Tribunal. The correspondence was, in part, somewhat offensive in its tone. That aside, it failed to address the issue sought by the letters of 20 July and 10 September. Case No: 1403093/2020[6]Accordingly, the Claimant has failed to give an acceptable reason why the complaint of unfair dismissal should not be struck out, despite having been given the opportunity to do so and it is therefore struck out.[7]The Judge noted that, in a telephone call with a member of the Tribunal Staff, the Claimant indicated that his complaint was one of discrimination on the grounds of sex. That claim was not included in the Claim Form nor was it explained within the body of the text of box 8.2. No application has been made to amend to introduce such a complaint and, on the basis of the facts currently set out in the Form, it is difficult to understand how an assertion that an alleged untrue allegation of sexual harassment made against him necessarily amounted to discrimination on the grounds of sex.[8]The dismissal of the complaint of unfair dismissal therefore brings this claim to a conclusion.[1]The Claimant has applied for a reconsideration of the Judgment dated 28 September 2020 which was sent to the parties on 29 September. The grounds are set out in his application of 30 September 2020. Relevant legal framework[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under rule 71, an application for reconsideration under rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received inside the relevant time limit.[3]The grounds for reconsideration are only those set out within rule 70, namely that it is necessary in the interests of justice to do so. The earlier case law suggested that the ‘interests of justice’ ground should be construed restrictively. The Employment Appeal Tribunal in Trimble-v-Supertravel Ltd [1982] ICR 440 decided that, if a matter had been ventilated and argued at the hearing, any error of law fell to be corrected on appeal and not by review. In addition, in Fforde-v-Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. More recent case law has suggested that the test should not be construed as restrictively as it was prior to the introduction of the overriding objective (which is now set out in rule 2) in order to ensure that cases are dealt with fairly and justly. As confirmed in Williams-v-Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the ‘interests of justice’ ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council-v-Marsden [2010] IRLR 743, the EAT stated that the requirement to deal with cases justly included the need for there to be finality in litigation, which was in the interest of both parties. Consideration and disposal[4]The Claimant’s application is not entirely coherent. Amongst the invective, he does appear to have attempted to address the issue regarding his lack of service at the bottom of the second page of the application. His ‘answer’ to the problem is to say that s. 108 ‘has nothing to do with Espionage-Poisonfabricated sexual harassment allegations-Harassment and STALKING’. Sadly, that is no answer to the provisions of the section which the Judge had a duty to apply to the circumstances of the claim.[5]In case there was any doubt that the Tribunal had misunderstood the claim, the Claimant addressed paragraph 7 of the Reasons for the Judgement of 28 September (in which it was suggested that his complaint might have been one of discrimination on the grounds of sex). He stated that the suggestion was a ‘perversion’ and/or ‘manipulation’ of his words.[6]In order to bring a complaint of unfair dismissal, the Claimant needed 2 years’ service. He did not have it and has failed to provide a sufficient explanation as to how his claim could have proceeded in law. It was therefore dismissed and there is nothing within the reconsideration application which sheds any greater light on the matter.[7]Accordingly, the application for reconsideration pursuant to rule 72 (1) is refused because there is no reasonable prospect of the Judgment being varied or revoked.