CASE REF: 98/05FET
CLAIMANT: John McCrea
RESPONDENT(S): 1. Gavin Warwick
2. Connor O'Neill
3. Interlink Ireland Ltd
The claim to the Fair Employment Tribunal is dismissed as:-
(i) It was not presented within the specified time limit, and
(ii) It is not just and equitable to extend time to 27 April 2005, on which date the claim was presented.
Constitution of Tribunal:
Chairman: Mr M G O'Brien
The claimant appeared in person.
The Respondents were represented by Mr H Coll, Elliott Duffy Garrett, Solicitors.
The Issues to be Decided
(i) Was the claim to the Fair Employment Tribunal presented within the specified time limit?
(ii) If not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this claim despite the fact that it is out of time?
Sources of Evidence
Findings of Fact
I am satisfied that in failing to complete the form at item 8.1 the claimant made an administrative error in failing to tick the box to indicate the type of discrimination about which he complains. I am satisfied now that he has clarified that his claim is of unlawful discrimination on grounds of religious belief/ political opinion that it would be in the interest of justice to review the decision not to accept that part of the claim because I have concluded that there would be more prejudice to the claimant
than to the respondent if the claimant could not pursue his claim of unlawful discrimination on the ground of religious belief/political opinion.
complains of allegedly occurred on 6 January 2005, since there is no evidence before the Tribunal to support or indicate any discriminatory act on 21 January 2006. Under cross-examination, the claimant conceded that the letter to the CEO of 25 January 2005 was silent about any of these allegations. The claimant accepted that any claims of unlawful discrimination on grounds of his religious belief/ political opinion which allegedly arose from 6 January 2005 should have been particularised at section 8.1 of the claim form to the Fair Employment Tribunal.
46.-(1) Subject to paragraph (5), the Tribunal shall not consider a complaint
under Article 38 unless it is brought before whichever is the earlier of;
(a) the end of the period of 3 months beginning with the day on which the
complainant first had knowledge, or might reasonably be expected first
to have had knowledge, of the act complained of; or
(b) the end of the period of 6 months beginning with the day on which the
act was done.
(5) A…Tribunal may nevertheless consider any such complaint, claim or
application which is out of time if, in all the circumstances of the case, it
considers that it is just and equitable to do so.
The Decision of the Tribunal
15. These are complex and not happily structured regulations. But it is at least plain that a Tribunal having to consider whether or not it has jurisdiction to deal with the particular complaint, will have first to consider whether either grievance applies at all, and if so which….
16. Where the standard procedure is applicable, that merely requires that there should be the statement of the grievance in writing sent to the employer. However, since as I have indicated a grievance under the regulations means a complaint about action which the employer has taken or is contemplating taking in relation to him, it follows that the statement of the grievance is simply a statement of such a complaint. It must of course be a statement of the same complaint as the employee is seeking to have determined by the Tribunal.
either before or after 3 April 2005. There was no reference to any such grievance in the letter of resignation dated 31 March 2005. Thus, a fortiori, the Tribunal determines the 2004 Regulations do not apply to the claimant's case.
"The rules of the court must, prima facie, be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a timetable for the conduct of litigation…"
"Where a time limit is imposed by statute it cannot be extended unless that or another statute contains a dispensing power. Where the time is imposed by rules of court which embody a dispensing power…the court must exercise its discretion in each case, and for that purpose the relevant principles are:
(1) whether the time is sped: a court will, where the reason is a good one, look more favourably on an application made before the time is up;
(2) when the time limit has expired, the extent to which the party applying is in default;
(3) the effect on the opposite party of granting the application and, in particular, whether he can be compensated by costs;
(4) whether a hearing on the merits has taken place or would be denied by refusing an extension;
(5) whether there is a point of substance (which in effect means a legal point of substance when dealing with cases states) to be made which could not otherwise be put forward;
(6) whether the point is of general, and not merely particular, significance; and
(7) that the rules of court are there to be observed.
Date and Place of Hearing: 22 September 2006, Belfast.
Date decision recorded in register and issued to parties: