Mrs C O'Brien v NHS Greater Glasgow and Clyde: 4121864/2018
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claim of unfair dismissal is dismissed.REASONS
1 . This Preliminary Hearing had been fixed to consider the question of time bar. It was the respondent’s position that the claim had been presented out of time and should be dismissed. E.T. Z4 (WR) S/41 2 1864/201 8 Page 2[2]The claimant had not appeared at 10am on 15 July 2019 when this case was due to be heard. I was satisfied that she had been sent a Notice of the Preliminary Hearing, on 22 May 2019, advising it would take place at 10am on Monday 15 July 2019.[3]I instructed the Clerk to try to contact the claimant to ascertain the reason for her non-appearance. The Clerk endeavoured to phone the claimant but was unsuccessful as there was no reply. A message was left advising the claimant of the attempts to contact her.[4]As the claimant had not appeared by 10.30am I had the case called.[5]Mr James requested that the case be dismissed under Rule 47 due to the non-attendance of the claimant. He advised that a previous Preliminary Hearing in March had been postponed at the request of the claimant. There was no explanation for her non-attendance today. In the circumstances he submitted that the claim should be dismissed.[6]Rule 47 of the first Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2013 provides that if a party fails to attend or 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, the Tribunal is required to consider any information which is available to it, after enquiries that may be practicable, about the reason for the party's absence.[7]It was Mr James’ submission that the Tribunal should dismiss the claim. I did not consider it would be possible to proceed with the Hearing in the absence of the claimant since on the face of it the claim is out of time and it is for the claimant to show that it was not reasonably practicable for her to present the claim within the statutory time limit. It is for the claimant to produce evidence about that.[8]I took into account that the claimant had been informed of the date assigned for the Preliminary Hearing and that the Clerk had endeavoured to contact her S/41 21 864/201 8 Page 3 by phone to ascertain the reason for her absence but had been unsuccessful. There was no explanation given to the Employment Tribunal for the claimant’s absence. In the circumstances I decided to dismiss the claim in terms of Rule 47.[9]If the claimant had a good reason for failing to attend the Hearing on 15 July 2019 she is of course entitled to apply for a Reconsideration within 14 days of the date upon which this Judgment is sent to her. Employment Judge: I Atack Date of Judgment: 18 July 2019 Entered in register: 22 July 2019 and copied to parties E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4121864/2018 Held in Glasgow on 29 August 2019 Employment Judge: I Atack Mrs C O’Brien Claimant In Person Greater Glasgow Health Board Respondent Represented by: Mr Christopher Reeves - Solicitor And Mr David James - Trainee SolicitorIntroduction
[1]This was an application for Reconsideration of a judgment dated 18 July 2019 and sent to the parties on the 22 July (the “judgment”).[2]That judgment dismissed the claimant’s claim of unfair dismissal because she had failed to appear on 15 July, the date fixed for a Preliminary Hearing on time bar. An attempt had been made by the clerk on 15 July to contact the claimant and a message had been left on her answering machine requesting her to call the Employment Tribunal as a matter of urgency.[3]The claimant contacted the Employment Tribunal on 19 July and was advised by a clerk that her case had been dismissed as a result of her non-appearance.[4]The claimant then wrote to the Employment Tribunal by email on 19 July explaining that she had not received notification of the hearing and that was 15 the reason for her non-attendance. She requested that another date be set for her hearing as she wished to pursue her claim and intended to attend in future.[5]That letter was treated as an application for review under rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 20 2013 ( the “Rules”). It was considered under rule 72 and not refused.[6]The parties were advised of the time limit for any response to the application and their views where sought as to whether the application could be dealt with without a hearing.[7]The respondent was given an opportunity to answer the application but apart 25 from seeking clarification that if a decision was made to overturn the judgment the case would again be listed for a Preliminary Hearing on the issue of time bar, made no further comment. There was no objection by the respondent to the application.[8]It was agreed by the parties that the application would be dealt with on the paper without the necessity of a Hearing in person.[9]The claimant submitted a further letter dated 20 August which restated that she had not received the notice of the Preliminary Hearing due to be heard on 15 July. She also made comments about her general health and sent a 5 copy of a letter from the Nursing and Midwifery Council dated 5 April 2018 regarding their decision in respect of allegations which had been made against her.[10]These latter matters are not relevant to this application. The claimant’s sole explanation for her failure to attend on 15 July was that she had not received 10 the notice informing her of the date of the Preliminary Hearing to consider the question as to whether her claim was time barred.[11]In terms of rule 71 an application for reconsideration must be made within 14 days of the date on which the judgment was sent to the parties. The judgment was sent on 22 July but the application was made on 19 July following the 15 claimant’s having been advised in a telephone call that her case had been dismissed.[12]Strictly, the provisions of rule 71 have not been complied with as the application was made before the judgment and the reasons for it were sent to the claimant. However, the Employment Tribunal has power under rule 70 on 20 its own initiative to reconsider a judgment where that is necessary in the interest of justice.[13]In terms of rule 90 a document is deemed to be received by the addressee if sent by post, on the day on which it would be delivered in the ordinary course of post. There is therefore a presumption that the notice advising the claimant 25 of the date of the Preliminary Hearing was received by her, unless the contrary is proved. The burden is on the claimant to prove that she did not receive the document. That burden of proof is on the balance of probabilities.[14]In this case the claimant had previously communicated with the Employment Tribunal without problem. She had requested that a previous Preliminary Hearing which had been fixed for March 2019 be postponed. She had displayed an ability to deal with requesting a postponement when she had been aware of the date of the hearing.[15]Having considered all of the claimant had stated in her letters of 19 July and 20 August I considered it was more likely than not that she had not in fact 5 received the notice advising her of the Preliminary Hearing on 15 July. She continues to wish to pursue her claim and has done nothing to indicate that she does not intend to do so. In the circumstances I consider that she has rebutted the presumption that she be deemed to have received the Notice advising her of the Preliminary Hearing.[16]Bearing in mind that the respondent has not objected to the application I consider it to be in the interests of justice to revoke the judgment of 18 July dismissing the claim of unfair dismissal. The case will now be relisted for a Preliminary Hearing on the issue of time bar. Employment Judge: Iain Atack Date of Judgment: 29 August 2019 Entered in register: 04 September 2019 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4121864/2018 Mrs C O'Brien Claimant NHS Greater Glasgow And Clyde Respondents