EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Damien Duffy UD374/2015
Sap Service And Support Centre (Ireland) Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. J. O'Neill
Ms. N. Greene
heard this case in Dublin on 14 April 2016
Mr. Jack Tchkarian BL instructed by
Mr. Daniel Pelu for Mr. Timothy Smyth, Phelim O'Neill, Solicitors,
120 Pembroke Road, Ballsbridge, Dublin 4
Ms. Niamh McGowan BL instructed by
Mr. Michael Doyle, Arthur Cox, Solicitors,
Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:-
At the start of the hearing the respondent’s representative said that the claimant was not present to prosecute his case and that the claimant could not give evidence on that day. She said that she had authorities in the form of three other Tribunal determinations. A postponement application in the instant case had been refused. She then took the Tribunal through three decided cases. The Tribunal drew a distinction between when a non-appearing claimant had representation or not and pointed out that the respondent would normally go first where dismissal was not in dispute.
The respondent’s representative responded by saying that the respondent had one witness to prove a report and that if the respondent finished its evidence on the opening hearing day then the respondent had to “get done” on that day.
The claimant’s representative replied that the respondent had done the dismissal and that, if the claimant’s absence caused prejudice, the prejudice was all on the claimant side. The claimant’s representative added that the claimant had given dates on which he could proceed.
Referring to the refused postponement application, the respondent’s representative said that it had been accepted that the claimant had been on notice but that there had been no suggestion of efforts by the claimant to prosecute his claim. The claimant was now in Colombia permanently. The Tribunal took a recess.
After the recess the Tribunal asked why the claimant was not present. The claimant’s representative said that in early May of 2015 the claimant had got a job in Bogotá. The Tribunal hearing notification was 24 March 2016. On 1 April 2016 a letter was sent to the claimant. On 6 or 7 April 2016 the claimant said that he was now living in Colombia. At the start of May 2015 the claimant had emigrated to Colombia. In early April 2016 the claimant had been told of the hearing date. Then the claimant could not attend the hearing. He had a job in Colombia.
The Tribunal asked how the claimant would get the hearing notice. It was established that there had been a couple of weeks’ notice.
The claimant’s representative said that the claimant’s solicitor (TS) had left and that the relevant solicitors’ offices were closed for Easter until Tuesday 29 March 2016. It was 1 April 2016 before the claimant was contacted. A call was made to the respondent’s solicitors. The claimant’s representative was not immediately available due to other commitments. A postponement application was made on 11 April 2016 but was contested by the respondent’s representative and refused by the Tribunal.
The Tribunal stated that the hearing notice had gone out on 24 March 2016 and asked the respondent’s representative if the claimant was being treated harshly. The respondent’s representative replied that the claimant had decided not to come, that he was a technical analyst and that it was for the claimant to prosecute his case. She said that she had put authorities to the Tribunal which had a very solid basis and that the claimant could appeal. She had only one witness but others were there to give instructions. The very chairman (KTOM) of the Tribunal had decided to dismiss for want of prosecution.
The claimant’s representative replied that there was no matter of proof for which the claimant was needed that day. The respondent was saying that the dismissal had been fair. He argued that a second hearing day would be needed anyway.
The respondent’s representative countered that the Forms T1A and T2 were not evidence, that without the claimant his service could not be looked at and that he had to engage the jurisdiction of the Tribunal. She stressed that the claimant had decided not to come.
Questioned by the Tribunal as to whether the Tribunal could adjourn to another day, the respondent’s representative said that the respondent side should not have to come back another day and queried why the respondent should be put to the cost of coming again. The dismissal was already fifteen months old.
The claimant’s representative said that the claimant was a native of Donegal and that he had asked that the claimant give dates of availability and the claimant had done so.
The Tribunal asked if the claimant had made efforts to come back. His representative replied in the negative saying that the claimant would need a week off work and that the respondent had not consented to a postponement. The Tribunal said that the respondent did not have to consent and it took a recess.
After the recess the Tribunal said that it had decided to dismiss the case for want of prosecution. The claimant had not written to the Tribunal. Application for a postponement had not been made in a timely manner. If it had been a postponement might have been granted. A better effort could have been made. This case was not to be taken as a precedent. All cases should be seen on their own merits. The Tribunal had decided to grant a dismissal of this case for want of prosecution.
The claim under the Unfair Dismissals Acts, 1977 to 2007, is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal