Mr M Doolan v Citizens Advice South Lincolnshire: 2601757/2017
JUDGMENT
The claim is struck out.REASONS
[1]By a letter dated 22nd November 2017 the Tribunal have the Claimant an opportunity to make representations why the claim of unfair dismissal should not be struck out because he lacked the requisite period of continuous service to bring the claim. No representations were received and the unfair dismissal claim is therefore struck out on the basis that the Claimant has no standing to bring that complaint.[2]By a letter dated 19 February 2018 the Tribunal gave the Claimant an opportunity to make representations or to request a hearing, as to why the complaint of breach of contract relating to notice should not be struck out on the basis that he had given notice of his resignation and there was therefore no breach of contract. The Claimant has not made sufficient representations to show why the complaint should not be struck out as he has not suggested that he did not give and work the notice period that his complaint relates to.[3]The hearing fixed for 2 May 2018 will not take place. 1st May 2018[1]The Claimant cannot bring a complaint of constructive unfair dismissal (i.e. alleging that he resigned because his employer was in repudiatory breach of contract) because he has less than 2 years continuous service with that employer. Section 108 Employment Rights Act 1996 requires Claimants bringing such complaints to have that minimum period of service and the Claimant has disclosed no facts to suggest that any of the exceptions to that position (i.e. a claim of automatically unfair dismissal) are applicable to the circumstances of the case. He therefore does not have the standing to bring a constructive unfair dismissal claim and it therefore has no reasonable prospect of succeeding.[2]The Claimant cannot bring a claim for breach of contract with regard to notice pay on the basis that it is contended that he resigned in response to a fundamental breach of contract because there is no dispute on the basis of the information available to the Tribunal that he gave and worked the period of notice that he appears to be claiming for. Any claim based on constructive wrongful dismissal would be pursued on the basis that the Claimant had resigned without notice in circumstances in which he was entitled to do so on account of the conduct of his employer. The remedy in such a claim would be for a sum equivalent to pay due for the notice period which would have been given but for the breach. There can therefore be no claim for notice pay as notice was given by the Claimant 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 2601757/017 and worked by him. That claim therefore had and still has no reasonable prospect of success.[3]The Claimant cannot bring a standalone claim in the Tribunal alleging that his former employer was in fundamental breach of contract and that this caused him to resign unless this is brought as a complaint of constructive unfair dismissal (for which he has no standing as set out above) or a complaint relating to notice pay (which has no prospect of success as set out above).[4]The Tribunal has no jurisdiction to deal with any complaint that the Respondent has misused public funds as referred to in the Claimant’s Reconsideration application.