Mr Mihailescu v Care Signature Christian Homecare Services Ltd: 3304006/2020
JUDGMENT
The Respondent’s application to strike out the claim fails.REASONS
[1]On 22 December 2021, the respondent made an application to strike out the claim pursuant to Rules 37(1)(a) and/or (b) of the Tribunal Rules 2013 on the basis that they say the claims are vexatious and have no reasonable prospect of success and/or the claimant has acted vexatiously and unreasonably in the conduct of these proceedings.[2]With regard to the claimant’s conduct, the claimant has refused to recognise Avensure as the respondent’s representative and has persisted in sending communications directly to the respondent. He has blocked Ms Young’s email address. This has caused considerable frustration and inconvenience to the respondent and hampered preparation of the case.[3]The claimant is not represented and English is not his first language. He told me he was confused and thought he should only communicate with the name of the respondent’s representative as stated in the response (ET3). He was concerned that Avensure are not a “legal firm” and was also confused by the fact they did not always put the case number on communications. Case Number:3304006.2020 PHCM Order (NEW August 2020) 2 of 2 August 2020[4]Ms Young confirmed to me that Avensure are indeed appointed to represent the respondent. The claimant told me he now accepts this. He assured me that going forward he would unblock Ms Young’s email address, accept and respond to communications from Avensure and cease to send communications directly to the respondent. Ms Young agreed to put the tribunal case number on all future communications. I explained to the claimant that he may receive communications from people other than Ms Young at Avensure and he must still respond.[5]Ms Young said the claimant’s conduct had fallen short in a number of other ways.5.1 He had submitted a second witness statement after he had received the respondent’s witness statement. I explained to the claimant that this was not permitted and that only his first statement would be allowed. He accepted this.5.2 Ms Young said the claimant has refused to engage with regard to preparation of the bundle. This is connected to his refusal to engage with Avensure. The claimant agreed to directions regarding preparation of the bundle going forward.[6]In light of the claimant’s reassurances that he would recognise Avensure as the respondent’s representative, cease to communicate directly with the respondent and would cooperate with regard to the bundle, I refused the application to strike out the claims based on the claimant’s conduct. I have taken into account that he is not legally represented and that English is not his first language. However I made it very clear to him that if he did not cooperate with Avensure in the future to ensure this case is properly prepared, I fully expected the respondent to make a further application to strike out and I fully expected that application to succeed.[7]With regard to the merits of the claims, Ms Young says the claimant has brought claims which the Tribunal has no jurisdiction to determine; she says his claims are to be paid for what he thinks he should have been paid rather than what was contractually agreed. He also says he should be paid for 40 hours per week regardless when he entered into a zero hours contract. I refused to strike out on this basis. What was or was not contractually agreed is a question of fact to be determined by the tribunal at the final hearing in the light of all the evidence including any documents relevant to the claimant’s terms and conditions. EJ Mason 14 February 2022 Judgment sent to the parties on: …19 February 2022…. For the Tribunal Office: ……GDJ………………….. Case Number:3304006/2020 PHCM Order (NEW August 2020) 1 of 2 August 2020 EMPLOYMENT TRIBUNALS Claimant: Mr. Mihailescu Respondent: Care Signature Christian Homecare Services Ltd[1]Strike out Judgment1.1 At an Open Preliminary Hearing on 11 February 2022, I refused the Respondent’s application to strike-out the Claimant’s claim pursuant to Rules 37(1)(a) and/or (b) of the ETs (Constitution & Rules of Procedure) Regs 2013 (“the 2103 Rules”) on the basis the claims are vexatious and have no reasonable prospects of success and/or that the Claimant has acted vexatiously and unreasonably in the conduct of these proceedings.1.2 I informed the parties of my decision at the hearing and also provided written reasons in a judgement sent to the parties on 19 February 2022.1.3 On 5 March 2022 the Claimant made an application for reconsideration of the strike out Judgment by email to the Watford Employment Tribunal. Unfortunately, this application was not forwarded to me and I did not have sight of it until 15 June 2022.1.4 Insofar as this is an application to reconsider my decision not to strike out (which is unclear) there is no reasonable prospects of the Judgment on strike out being varied or revoked because it is not necessary in the interests of justice to reconsider the Judgment and there is no reasonable prospect of it being varied or revoked under Rule 70 ETs (Constitution & Rules of Procedure) Regs 2013 (“the 2103 Rules”). It is also perverse for the Claimant to be asking for a decision which went in his favour to be reconsidered. Case Number:3304006/2020 PHCM Order (NEW August 2020) 2 of 2 August 2020[2]Case Management Orders2.1 Having considered and dismissed the Respondent’s strike-out application on 11 February 2022, I went on to list the final hearing, and make case management orders. The Claimant appears to take issue with some of my orders in his application dated 2 March 2022. These were discussed, explained and agreed at the Preliminary Hearing on 11 February which the Claimant attended and was assisted by a Romanian interpreter.2.2 On 25 February 2022, the claimant made an application for, using the claimant’s words, “review (reconsideration) of the Case Management Order/ Case Summary” by email to Watford Employment Tribunal, which again was not actioned and I did not have sight of it until 15 June 2022. This runs to 10 pages and the content appears to be repetition of the arguments/explanations the Claimant put forward at the hearing.2.3 With regard to documents, on 15 June 2022 Employment Judge Welch relisted the final hearing and considered again with the parties case management and made orders regarding documents and preparation of a file of documents.2.4 With regard to my order that he could not provide an amended witness statement, my notes show that the Claimant told me at the hearing that he had sent an amended witness statement to the Respondent because he was “confused” and confirmed to me that he had a copy of the bundle at the time he prepared his statement. On this basis, I made an order that the parties amend their witness statements to refer to any documents in the joint file by page number, but not otherwise.2.5 This application also has no reasonable prospect of being varied or revoked because it is not necessary in the interests of justice to reconsider the Judgment and there is no reasonable prospect of it being varied or revoked under Rule 70 ETs (Constitution & Rules of Procedure) Regs 2013 (“the 2103 Rules”).[3]In conclusion, I refuse the Claimant’s applications for review because there is no prospect of my decisions being varied or revoked.[4]The Respondent made an application to strike out the Claimant’s claim dated 24 March 2022, and I have listed an open preliminary hearing to determine this. The parties will receive a Notice of Hearing in due course.