Mr M Newbigging v Orion Engineering Services Ltd: 4102472/2020
JUDGMENT
The Judgment of the Tribunal is that the claim is dismissed.REASONS
[1]The claimant sought payment of notice pay. The respondent denied that he was entitled to such a payment. In short, the respondent maintained that the claimant was not an employee but rather a “sub-contractor”. In support of their defence of the claim they produced various contractual documents which included a “Purchase Order” and a signed Agreement with “MN Joinery Ltd”, the claimant’s Company.[2]However, the claimant maintained that, notwithstanding the terms of the Agreement, he was, in effect, an employee and was entitled to a notice payment when his “employment” with the respondent Company ended. E.T. Z4 (WR)[3]After various procedures, a final hearing, to be conducted “remotely” by video conference using the “Cloud Video Platform” (“CVP”), was fixed for 23 and 24 September 2020. A notice of the final hearing was sent to the parties by the Tribunal on 12 August 2020. Claimant’s postponement application[4]In the morning of the first day of the hearing, on 23 September 2020 at 07:06, the claimant sent an e-mail to the Tribunal in the following terms: - “Further to our phone conversation yesterday I would like to request a postponement of the hearing until next month as I have only recently started back at work. It is based on price work and if I am off, my work mate is also off as he can’t do the work without us so I’m not robbing him of wages. We’re both off the full week starting 19 October so would be no problem to have the hearing then.”[5]I instructed the Tribunal Clerk to seek the views of the respondent on the claimant’s postponement request. The respondent’s representative replied as follows: - “Given the preparations and extensive time commitment expended already to defend our legitimate business practices, Orion are not prepared to move the hearing date unless the ET instructs otherwise. On a personal note I have given up holiday leave to attend today and our witness has rearranged his diary to accommodate these proceedings (which included rearranging ongoing discussions regarding price work and work opportunities for many people).”[6]Rule 30A in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 is in the following terms:- “30A Postponements(1) An application by a party for the postponement of a hearing shall be presented to the Tribunal and communicated to the other parties as soon as possible after the need for a postponement becomes known.(2) Where a party makes an application for a postponement of a hearing less than 7 days before the date on which the hearing begins, the Tribunal may only order the postponement where – (a) all other parties consent to the postponement and - (i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii) it is otherwise in accordance with the overriding objective; (b) the application was necessitated by an act or omission by another party or the Tribunal; or (c) there are exceptional circumstances.[7]The claimant was made aware of the dates for the final hearing on 12 August 2020. He only applied for a postponement in the morning of the hearing on 23 September. It did not appear to me that he had applied, “as soon as possible after the need for a postponement becomes known”.[8]In any event, with reference to Rule 30A(2)(a)(i), there was no indication that were I to postpone the hearing the parties would be able to resolve their disputes by agreement. The respondent had maintained steadfastly throughout the case that the claimant was not an employee and was not therefore entitled to the notice payment he was seeking.[9]Nor was I persuaded that postponement was in accordance with the “overriding objective” in the Rules of Procedure. The respondent had already incurred expense defending the claim and Ross MacRae, their Group HR Director, and Gary Scott, their General Manager, were present at the appointed time and ready to proceed with the hearing.[10]Nor was I persuaded that there were “exceptional circumstances” which would justify the claimant’s application. It appeared to me that the claimant had treated the Employment Tribunal in a rather cavalier manner.[11]For all these reasons, therefore, I decided to refuse the claimant’s application. Claimant’s failure to attend the hearing[12]The Tribunal Clerk then advised the parties of my decision and invited them to participate in the CVP hearing. Both Mr MacRae and Mr Scott were ready to proceed on behalf of the respondent.[13]However, the claimant failed to join the hearing, despite the Tribunal Clerk sending him two e-mails inviting him to do so.[14]Rule 47 in Schedule 1 of the Rules of Procedure is in the following terms:- “47 Non-attendance 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 will consider any information available to it, and after any enquiries that may be practicable, about the reasons for the party’s absence.”[15]In all the circumstances, I decided to proceed with the hearing. In doing so, I was aware of the reason the claimant gave for his absence. I did not consider, in all the circumstances, this to be at all satisfactory.[16]I did consider the alternative of discharging the hearing and fixing other dates and considering whether there should be an award of expenses against the claimant. However, in all the circumstances, I decided that that would not be in the interests of justice or in accordance with the “overriding objective” in the Rules of Procedure.[17]The claim was one of breach of contract. The onus was on the claimant to prove his claim. He failed to do so.[18]I decided to dismiss the claim. Expenses[19]Having advised the respondent’s representative of my decision, I asked him whether he wished to seek an award of expenses against the claimant. He advised that the did not wish to do so.