Mr H Kainth v British Airways plc: 3303779/2019
JUDGMENT
The proceedings are dismissed following a withdrawal of the claim by the Claimant. JUDGMENT ON RECONSIDERATION The claimant’s application for the reinstatement of his claim having been withdrawn by his legal representative, is refused.REASONS
[1]By a claim for presented to the tribunal on 11 February 2019, the claimant claimed that he had been unfairly dismissed from his employment with the respondent as a Team Leader. He commenced employment on 26 June 2000 and was terminated on 3 December 2018. He asserted that the respondent’s procedure, up to an including termination of his employment, was flawed.[2]In the response, presented to the tribunal on 10 April 2019, it is averred that he was dismissed for gross misconduct, in that, following a review of staff travel concessions, it was discovered that he had been exploiting his concessions by providing them to individuals who appear to be unknown to him and who had been provided with his password. A fair procedure had been followed and dismissal was reasonable in the circumstances. Further, it would not be just and equitable to award the claimant compensation should he be successful in his unfair dismissal claim having regard to his conduct. In addition, he had caused and/or contributed to his dismissal. If there had been any procedural failings, a fair procedure would have made no difference to the decision to dismiss him.[3]The case was listed for hearing on 29 November 2019 by way of a notice claimant was being represented by Mr Bobby Madan, of West London Legal Centre in Southall. Mr Madan completed and submitted the claimant’s claim form.[4]On 9 April 2019, Mr Madan emailed the tribunal and copied in the respondent’s representatives stating the following: “Dear Sirs, We write to inform you that our client, the claimant, wishes to withdraw his claim against the respondent employers due to ongoing issues with his personal and financial circumstances. This will require that we forfeit the amended case management schedule proposed by the respondents. We have also copied the respondents into this email. We would be grateful if you could kindly provide confirmation of the withdrawal request.”[5]The tribunal wrote to the parties informing them that the final hearing, listed on 29 November 2019, had been vacated.[6]On 8 May 2019, judgment was issued dismissing the claim following the claimant’s withdrawal. On the same day, the parties were emailed the judgment.[7]On 9 July 2019, the claimant emailed the tribunal stating, in relation to his claim, the following: “I was informed I have a hearing date set for Friday 29 November 2019 and am concerned I have had no recent communication from the Employment Tribunal. I was represented by Mr Bobby Madan of West London Legal Centre from whom I have had no communication since April 2019. I have had a disagreement with Mr Madan and I expected all my communication with the tribunal to be sent to me directly whilst I find another representative. Please confirm Mr Bobby Madan has informed the Tribunal that he has removed himself as my representative and the Tribunal will communicate with me directly. I am concerned Mr Madan may have cancelled my claim without my permission. Under the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Rule 51 and 52, I wish to inform the tribunal that I have not agreed for my claim to be withdrawn. Please forward all future correspondence to me directly at my home address and by email. Thank you for your assistance and I look forward in hearing from you.”[8]The claimant then forwarded to the tribunal an email sent by Mr Madan to him dated 3 April 2019, in which Mr Madan expresses concerns about the claimant and a colleague of the claimant who questioned his professionalism and competence. He stated that he did not wish to have his reputation tarnished; that the claimant had been extremely courteous towards him; that he was happy to refund the monies paid to him by the claimant; and was prepared to withdraw from the case. He asked that the claimant should forward to him his account details in order that he could make the first instalment to him.[9]In the claimant’s letter to the tribunal, sent on 1 August 2019, attaching Mr Madan’s 3 April 2019 email, he wrote: “Further to my email to you dated 9 July 2019 on your telephone conversation with me today, please see representations below and my reasons why my case be reinstated:- 1. I initially instructed Mr Madan to deal with my case and paid him a substantial sum. He did not provide me any proper terms and conditions of agreement or even a receipt for the monies paid. 2. On 3 April 2019 I had a telephone conversation with Mr Madan and we had a disagreement on the conduct of my case, we had a falling out. He said he could not represent me anymore and I was clear with him in that I would transfer my case to another solicitor and for him to send to me all the paperwork pertaining to my case. 3. In his email to me dated 3 April 2019, attached, Mr Madan clearly states, “It may be better if you did go to someone in town with this case.” 4. Mr Madan did not follow my instructions and allow me the opportunity to transfer my case to another solicitor but instead has instructed the tribunal to withdraw my case that I never agreed to. I am unclear what reasons he gave the tribunal but clearly, he should simply have advised the tribunal that he no longer represents me and the tribunal could have communicated with me directly until I put in place a new representative. 5. Following this email Mr Madan refused to communicate with me and did not return any of my documents pertaining to my case that I still awaiting. 6. I am grateful the tribunal has made me aware Mr Madan has withdrawn my case. I apologise for my delay in contacting the tribunal as I have been under enormous stress, anxiety and depression and am unable to deal with this and not knowing where I stand and only this week sought legal advice and immediately contacted the tribunal. 7. I was employed by the respondent for over 18 years and I was unfairly dismissed and there are good prospects of success in my case and would be grateful if the tribunal could consider my reasons above and allow me the opportunity to have my case relisted. Thank you for your assistance and I look forward in hearing from you.”[10]On 8 September 2019, the tribunal informed the claimant that his letter with the attachment would be treated as an application for a reconsideration of the judgment.[11]On 12 September 2019, the respondent’s legal representatives wrote to the tribunal in response to the claimant’s reconsideration application. They stated the following: “Dear Sirs, We act on behalf of the respondent in the above case. Please note that the writer is now the fee earner with conduct of this claim and kindly update your records accordingly. We write to object to the claimant’s application for reconsideration of the dismissal for the following reasons: Rule 71 of the Employment Tribunal Rules requires that the application, setting out the reasons why reconsideration of the original decision should take place, should be made in writing within 14 days from the date on which the written record of the original decision was sent to the parties. The judgment of dismissal made by the Employment Tribunal confirms that this was sent to the parties on 8 May 2019. The application to reconsider was only made on 1 August 2019. While the claimant has said that the reason for the delay was “enormous stress, anxiety and depression and unable to deal with this and not knowing where I stand and only this week sought legal advice and immediately contacted the tribunal” he has provided no evidence to support this and no details of when he sought legal advice. In view of the length of the delay before the reconsideration request was made, we do not consider that the tribunal should extend time. If the tribunal decides to consider the application under Rule 71, despite the noncompliance with the time limit, we respectfully submit that, under Rule 72, there is no reasonable prospect of the original decision being varied or revoked. The claimant’s representatives email to the tribunal dated 9 April 2019 unequivocally withdrew the claim and did not say that the claimant wished to continue with the claim as is now suggested. This was confirmed by the representative’s email to this form of 9 April 2019 (copy attached). The respondent is entitled to take such unequivocal withdrawal at face value and to have finality of litigation. If this was not what the claimant instructed his representative to do then Mr Kainth’s remedy should not be sought in the reconsideration of this case against the respondent, but rather he should address this with Greenford Law.”[12]On 10 November 2019, I gave instructions that the case should be listed for a 3 hour hearing with directions for preparation and service of a joint bundle of documents by the claimant.[13]As is the practice of this tribunal, the day prior to the hearing the parties are contacted to confirm their attendance. The claimant was emailed on 12 February 2020 by the tribunal to remind him of the hearing. The tribunal spoke directly to Mr Hollebon, the respondent’s solicitor, who confirmed that he would be attending.[14]On 12 February 2020 at 10.18, the claimant emailed the tribunal, four minutes after the tribunal sent its email to him, stating the following: “I will not be coming. If you can let me know the outcome of the hearing please.”[15]He did not copy in the respondent’s legal representatives.[16]He did not attend the hearing nor was he represented.[17]Under Rule 70 Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, the tribunal can reconsider any judgment where it is necessary in the interest of justice to do so. “On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If is it revoked it may be taken again.”Conclusion
[18]This is a case in which I needed to hear evidence relevant to my consideration of the interests of justice. Neither the claimant nor his previous legal representative, appeared before me to give evidence in relation to what transpired before and after the email sent by Mr Madan on 9 April 2019 and why the claimant delayed in making his application to the tribunal? The judgment was sent to the parties on 8 May 2019. The claimant wrote to the tribunal on 9 July 2019 and formally made his application for a reconsideration on 1 August 2019. This was nearly two months after the withdrawal judgment was sent. The claimant has provided no medical evidence of his mental state from May to 1 August 2019. Furthermore, he gave no reason why he was unable to attend the hearing today. I was unclear what the interests of justice ground is in this case.[19]In the absence of the claimant’s evidence, I was unable to make any material findings of fact which would allow me to decide whether it is in the interests of justice to either confirm, vary or revoke the dismissal judgment. Accordingly, I dismiss the application and confirm the judgment.[20]In addition, or in the alternative, I apply Rule 47 which states: “If a party fails to attend or to be represented at the hearing, the tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquires that may be practicable, about the reasons for the party’s absence,”[21]Having regard to the outline of the case and the chronology given above, and having read the tribunal’s file, there is very little in it to persuade me that it is in the interests of justice to either confirm, vary or revoke the judgment. As he has not provided a good reason for his absence and that evidence from him or representations in writing would be required to determine the interests of justice point, I dismiss his reconsideration application.