THE INDUSTRIAL TRIBUNALS

CASE REF:	  753/13

CLAIMANT:			Odunyemi Nurudeen	

RESPONDENTS:	1. Kana Software (Sinead Kelly, Resourcing and 
    Recruiting Manager)	

				2. Kana Software (Gary McWilliams, Head of 
    Product Development)

DECISION 
The unanimous decision of the tribunal is:-

1.	The claimant’s claim of race discrimination is dismissed.
2.	The claimant’s claim of unfair dismissal is dismissed.

Constitution of Tribunal:
Chairman:		Miss E McCaffrey
Members:		Mr N Jones
			Mr H Fox

Appearances:
The claimant did not appear and was represented by her brother, Mr W Adefurin.

The respondents were represented by Mr B Mulqueen, Barrister-at-Law instructed by A and L Goodbody Solicitors.

1.	This case was listed for hearing for ten days commencing on 13 January 2014.  During a telephone Case Management Discussion on 13 January 2014, it became apparent that the claimant did not intend to appear at the hearing and that Mr Adefurin did not at that stage intend to call any witnesses on behalf of the claimant.  It was his submission that the matter should be dealt with by the claimant’s witness statements.  It was explained to him in some detail at that stage that the claimant and her witnesses needed to attend to have their witness statements formally proved and adopted and to be subject to cross-examination by the respondents.  

2.	At the commencement of the oral hearing on 14 January 2014, the claimant was not in attendance nor were any of her witnesses apart from Mr Adefurin who intended to adduce a statement on the claimant’s behalf.  He had not been involved in the claimant’s disciplinary process or been at any meetings.  The respondents’ representative made an application for the case to be struck-out on the basis that the claimant was not present and would be unable to adduce any evidence in relation to her claims of race discrimination and unfair dismissal.  He referred the tribunal to the decision of the Court of Appeal in England and Wales in Roberts v Skelmersdale College [2003] EWCA Civ 954.  This decision underlined that where a claimant did not attend a tribunal, the tribunal had wide powers to dismiss the case without having to consider the content of the claimant’s claim.

3.	In this case we were satisfied, having already read the pleadings in the case and the statements for the claimant and the respondent that neither the claimant’s claim form nor her statement adduced any evidence of race discrimination and accordingly we dismissed that case.  We were conscious that we had read the statements the day before the hearing, before we were aware that the claimant would not be in attendance.  We declined to dismiss the claim of unfair dismissal.  The respondents had conceded that dismissal had occurred and one of the claimant’s witnesses, who lived in Belfast and we believed would be available to attend the tribunal, raised an issue in her witness statement about alleged changes to the documentation regarding the disciplinary meeting which we believed needed further examination.

4.	We made it clear to the claimant’s representative that because the claimant was not present, and was not available to take the oath to adopt her witness statement as reference to the tribunal and be cross-examined on it, we believed that we could give minimal weight to it.  The claimant’s representative however attempted on a number of occasions to introduce supplementary statements from the claimant and, in spite of the fact that he was told several times that this would not be acceptable, he persisted in this approach.  It was pointed out to him that any further statements from the claimant could not be produced because there was no possibility of an original signed statement being produced, given that the claimant is apparently living in Calgary, Alberta, Canada and we refused to accept any further applications on this matter.

5.	Having heard evidence from the respondents’ witnesses, and the claimant’s representative having had an opportunity to cross-examine them, we then heard evidence from Ms Ifonlaga, on behalf of the claimant.  While her witness statement raised the issue of amendments having been made to the minutes of the meeting at the disciplinary hearing, she did not raise any specific changes in her witness statement except to say that she believed that these had been to the detriment of the claimant.  She did not at any point raise anything which caused us concern that the amendments to these records had been in any way false or inaccurate.  The matter had been also dealt with in the witness statement of Sinead Kelly, one of the respondents’ witnesses.

6.	At the end of the case, we gave an oral decision.  In our ruling we noted that no evidence had been adduced by the claimant, apart from Ms Ifonlaga’s statement which raised the issue of documents relied upon by the respondent being altered.  However, there was nothing we could see raised by the respondents’ representative which put in doubt the core issues in the case.  The respondents on the other hand had adduced evidence to show that the claimant unfortunately did not reach the standards required to carry out her duties while employed by the respondents.  In spite of efforts made by the respondents’ managers to support the claimant in her work, before and after a Performance Improvement Process had been put in place, she did not show sufficient improvement to prevent disciplinary proceedings ensuing.

7.	We are satisfied that the disciplinary procedure which was followed complied with the statutory dismissal and disciplinary procedures and allowed an appeal at which the claimant was able to vent all the issues she wished to raised.  We are satisfied that in all the circumstances the dismissal of the claimant was fair and accordingly her claim of unfair dismissal is dismissed.

8.	Due to a request from the claimant’s representative to provide written reasons in relation to this matter, we have produced this decision which sets out the content of our ruling at the end of the proceedings and also sets in context the decision to dismiss the race discrimination case on the first day of the hearing.

Chairman:

Date and place of hearing:   13, 14 and 15 January 2014, Belfast.		

Date decision recorded in register and issued to parties: