FAIR EMPLOYMENT TRIBUNAL

CASE REF:	98/05FET
										 719/05

CLAIMANT:	John McCrea	

RESPONDENT(S):		1.	Gavin Warwick
2.	Connor O’Neill
3.	Interlink Ireland Ltd

DECISION ON A PRE-HEARING REVIEW

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 

			
Appearances:	

The claimant appeared in person. 
				
The Respondents were represented by Mr H Coll, Elliott Duffy Garrett, Solicitors.

The Issues to be Decided

1.	The Pre-Hearing Review was listed to determine the following questions;

(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

2.	The claimant gave evidence. 

3.	The first and second respondents gave evidence. The Tribunal also heard from Mr Brendan O’Neill for the third respondent.

Findings of Fact

4.	By his claim to the Fair Employment Tribunal (and given the reference number 98/05 FET), the claimant complained of certain acts. At section 5.5 of his claim, the claimant asserted he had put a complaint about these matters to the respondent on 31 January 2005, and at section 5.6 of the claim form, indicated that he had waited 28 days for a response. At section 6.1, the claimant stated he had been employed from 24 June 2002, and that his employment had ended on 15 April 2005. At sections 7.1 and 8.4, the claimant set out the substance of his claim. The claimant did not complete section 8.1 of the claim form (which is the section of the claim form that relates to claims of unlawful discrimination). At section 8.2, the claimant asserted that the matter he complained of occurred on 21 January 2005, and at section 8.3, indicated that he first knew of this occurrence on 21 January 2005.  The issues asserted at section 8.2 of the claim form relate to matters that fall within the jurisdiction of the Industrial Tribunal. The claim was presented to the Industrial and Fair Employment Tribunal on 27 April 2005. 

5.	The respondents presented responses on 22 August 2005. At section 5.2 of its response, the third respondent asserted the claimant was put on notice on 31 March 2005 that his employment would terminate on 30 April 2005. During this notice period, the third respondent was suspended on full pay for alleged gross misconduct. A disciplinary hearing was set for 15 April 2005. The claimant did not attend this disciplinary hearing, and did not provide reasons for non-attendance. The claimant was dismissed, and allowed an appeal against dismissal, which appeal was set for 13 May 2005. The claim before the Tribunal was thus presented before the hearing of the appeal. The third respondent denied any discrimination on ground of the claimant’s religious belief or political opinion. The third respondent contended that since the claimant asserted the acts complained of occurred on 21 January 2005, his claim presented on 27 April 2005 was not made within the statutory time limit. 

6.	By a Review Decision promulgated on 9 August 2005, a Tribunal Chairman reviewed an earlier decision not to accept that part of the claim which relates to a claim of unlawful discrimination on grounds of religious belief/ political opinion in the following terms;

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. 

7.	The responses for the first and second respondents essentially replicate that for the third respondent.

8.	The third respondent’s head office is in Athlone. On 6 January 2005, the claimant asked the first respondent for a meeting. This meeting was held on 6 January 2005 and was in two parts. In the first part of the meeting that day, the claimant met the first and second respondents. In the second part of the meeting, the claimant met with the first respondent alone. During this first part of the meeting, the claimant alleges that the first and second respondents made references and discriminatory remarks about Dr Ian Paisley, the Democratic Unionist Party, and Her Majesty, Queen Elizabeth II. The claimant sought a further meeting with the first respondent. 

9.	Between 6 January 2005 and 21 January 2005, the claimant took advice from Alana Jones, a Solicitor specialising in employment and discrimination law. 

10.	The claimant and the first respondent met again on 21 January 2005, at the third respondent’s premises at Depot 89, Moneyrea. The claimant said to the first respondent that he had obtained legal advice about his position. The first respondent then said that he was not prepared to continue with the meeting. The claimant was dissatisfied with the outcome of this meeting on 21 January 2005. 

11.	On 25 January 2005, the claimant sent a letter to Brendan O’Neill (third respondent Chief Executive Officer (CEO)). This letter outlined his concerns and requested a meeting with the CEO. Although he referred in the letter to the meeting with the first and second respondents on 6 January 2005, the claimant did not raise any allegations against the first and second respondents in his letter to the CEO, but instead took the opportunity to raise issues of (i) the freezing of his bonus, and (ii) the differential in his salary with that of another employee. The claimant conceded that there is no reference in this letter to any discriminatory act by the first respondent on 21 January 2005. 

12.	The CEO met the claimant on 22 February 2005 in Dublin. The CEO listened to the claimant. The claimant did not raise any allegation of unlawful discrimination as alleged by the first and/or second respondents on either 6 January 2005 or 21 January 2005. The CEO finished the meeting by saying he would respond to the claimant in writing. 

13.	The CEO responded by letter dated 16 March 2005, which the claimant received on 21 March 2005. The claimant was served notice to terminate his employment on 31 March 2005, which termination was to take effect from 30 April 2005. The claimant resigned by letter dated 31 March 2005. Thereafter, he obtained the claim forms to these tribunals. 

14.	The claimant’s evidence as to the date of the allegedly discriminatory act/s he complains of was varied and confused. In direct evidence, he stated that he is complaining of one incident, which occurred on 6 January 2005. In cross -examination, he stated that he was complaining of the meeting of 21 January 2005. In cross-examination, the claimant alleged that – on 6 January 2005 – the first and second respondents had made fun of the leader of the Democratic Unionist Party, Dr. Paisley, and that the second respondent allegedly said that the Queen should be removed as head of state. The Tribunal finds that the act/s the claimant 

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. 

15.	From 6 January 2005 to 21 January 2005, the claimant had the benefit of advice from two advisers (a firm of solicitors, and the Labour Relations Agency) to the effect that, when he went into the meeting with the first respondent on 21 January 2005, he understood that he could claim to the Fair Employment Tribunal as to the events he asserts on 6 January 2005. He was also aware of this right to claim when he wrote his letter of 25 January 2005 to the CEO. Preferring the credibility of the evidence of the CEO to that of the claimant, the Tribunal finds as a specific fact at the meeting on 22 February 2005, the claimant did not raise with Mr Brendan O’Neill any complaints of discriminatory treatment from the first and second respondents as alleged to have occurred on 6 January or 21 January 2005. 

16.	The claimant resigned by letter dated 31 March 2005. The letter is addressed to the first respondent. The letter gives as the reason for resigning the fact that there were changes in the bonus scheme which he found unacceptable, and the fact that another colleague was paid more for the same work. The letter concluded “I would like to take this opportunity to wish the company all the best in the future”. There is nothing in the letter of resignation that refers to the allegedly discriminatory statements on 6 January or 21 January 2005. 

17.	From 31 March 2005, the claimant had the benefit of advice from the Labour Relations Agency (at least once a week) and the Equality Commission. The claimant read an information booklet published by the LRA, and was informed of the three-month time limit. He understood it ran from the date of the last incident. From 31 March 2005 to 27 April 2005, the claimant was seeking re-employment. The claimant was dismissed for gross misconduct on 15 April 2005. 

18.	The claimant conceded in cross-examination that he had not raised any issue of alleged discrimination at his appeal hearing in May 2005.

Applicable Law

19.	The applicable law in respect of the claimant’s claim is to be found in the Fair Employment & Treatment (NI) Order 1998 [“the 1998 Order”].

20.	Discrimination on ground of religious belief or political opinion is prohibited in the employment field by Part III of the 1998 Order.

21.	Article 38 of the 1998 Order provides the claimant with the right to make a complaint pursuant to Part III of the 1998 Order to the Fair Employment Tribunal.

22.	Article 46(1) & (5) of the 1998 Order provides;

	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.
	
23.	The provisions of the Employment (NI) Order 2003 and the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004 do not apply to the claimant’s claim, since these provisions come into effect on 3 April 2005, after the events in question had occurred.

The Decision of the Tribunal

24.	The Tribunal has had regard to the provisions of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004. Regulation 18(2) (a) of the 2004 Regulations provides the Regulations do not apply “where the action about which the employee complains continues after these Regulations came into operation if the employee has raised a grievance about the action with the employer before they come into operation”. The claimant’s grievance on the Industrial Tribunal issues raised with the CEO was dated 25 January 2005 and was determined by the letter from the CEO to the claimant dated 16 March 2005. Thus, by virtue of Regulation 18(2) (a), the 2004 Regulations do not apply to the claimant’s case. 

25.	If there is any doubt about this, such doubt is completely dispelled with reference to the judgement of the Employment Appeal Tribunal in Canary Wharf Management Limited v. Edebi. The Tribunal has every empathy with Elias J when he states;

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.

26.	The Tribunal has found that there was nothing in the letter to the CEO dated 25 January 2005 that raised any issue of discrimination contrary to the 1998 Order. Accordingly, there was no such grievance raised by the claimant in this regard 

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.

27.	The Tribunal has found that the act/s complained of by the claimant allegedly occurred on 6 January 2006. Therefore, pursuant to Article 46(1) (a) of the 1998 Order, the date for presentation of his claim to the Fair Employment Tribunal expired on 6 April 2005. His claim was presented on 27 April 2006, and – accordingly – is out of time. 

28.	Accordingly, the Tribunal answers the first question put to it at paragraph 1(i) above in the negative.

29.	Turning to the second question put to it at paragraph 1(ii) above, the Tribunal has had regard to the observation of Lord Guest in Ratnam v. Cumarasamy [1965] 1 WLR 8 at 12;-

“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…”

30.	In Davis v. Northern Ireland Carriers [1979] NI 19, Lowry LCJ set out seven relevant principles in regard to the exercise of discretion to extend time limits, viz;

	“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.

31.	Harvey on Industrial Relations & Employment Law Vol. 5, section T, paragraph 279 outlines the considerations the Tribunal may weigh in deciding whether to exercise its statutory discretion in this regard. These are (i) the length and reasons for the delay, (ii) the extent to which the cogency of the evidence is likely to be affected by the delay, (iii) the extent to which the party sued had co-operated with any requests for information, (iv) the promptness with which the claimant acted once he knew of the facts giving rise to the cause of the action, and (v) the steps taken by the claimant to obtain appropriate professional advice once he knew of the possibility of taking action.

32.	Synthesising these authorities, the Tribunal has determined that, since the action complained of by the claimant allegedly occurred on 6 January 2005, time for presentation of his claim expired on 6 April 2005. The claim was presented on 27 April 2005. The claim is thus three weeks out of time. In other words, time has sped. From 6 January 2005, the claimant had the benefit of advice from a firm of solicitors specialising in employment and discrimination law. From 31 March 2005, the claimant had the benefit of repeated advice from the Labour Relations Agency, and also from the Equality Commission. He had read a booklet published by the LRA. He did not raise any issue of alleged discrimination in either his letter to the CEO of 25 January 2005, or in his letter of resignation of 31 March 2005. The latter document ends on a most cordial note, which is not suggestive of someone who was endeavouring to resolve what he later claims to be highly disputatious issues. The claimant did not raise any alleged discrimination with the CEO when he met with him on 22 February 2005. Indeed, the claimant did not initially raise any issue of discrimination on the face of his claim to the Tribunal, when he initially failed to complete section 8.1 of the claim form. On balance of probabilities, the claimant’s evidence before the Tribunal as to why he delayed for 21 days is rather vague. He stated it was because he thought that time ran from the last date complained of. There are two problems with this assertion. Firstly, even if the Tribunal had found that the last date complained of was 21 January 2005, the claim is still out of time by one week. Secondly, the claimant is a reasonably astute man, and appears to have consulted a number of professional advisors from 6 January 2006.  The claimant wrote to The CEO on 25 January 2005. The CEO met the claimant on 22 February 2005, and responded to the issues raised by him on 16 March 2005. The claimant resigned on 31 March 2005. Therefore, no issue can be argued that the respondents caused or contributed to the delay by being tardy in producing documentation or information to the claimant. Thus, on balance of probabilities, the Tribunal determines the fault for the three week delay in presenting his complaint is to be laid at the door of the claimant himself.  

33.	The Tribunal has considered the balance of inconvenience point, and has not ignored the fact that its determination will render the claimant without a claim to the Fair Employment Tribunal. Neither party asserted that the cogency of the evidence is likely to be affected by the delay. In deciding the issue against the claimant, the Tribunal is conscious of the fact that (whilst the respondents did not raise any vociferous issue of prejudice to them if the claim were allowed to proceed) the Tribunal should seek to exercise its statutory discretion wisely, and thus cannot merely overlook the statutory time limit provided by Article 46(1) of the 1998 Order. Article 46(1) is clear in its wording. It is not merely aspirational. It is clearly a deadline by which a claim should be presented. As Lowry LCJ stated in Davis “the rules of court are there to be observed”. 

34.	Whilst recognising the claim is an important matter to the claimant, the issues asserted by him do not appear to be of general significance, or in need of any public statement which require clarification by the Fair Employment Tribunal for the public’s benefit.

35.	Having considered the relevant principles, it is quite clear to the Tribunal there is insufficient convincing probative evidence before the Tribunal that would persuade it to overlook the clear and prescriptive deadline set down by Article 46(1) (a) of the 1998 Order, and to exercise the statutory discretion provided by Article 46(5) of the Order in favour of the claimant. Accordingly, the Tribunal answers the second question put to it at paragraph 1(ii) above in the negative.

36.	Accordingly, the claim before the Fair Employment Tribunal is dismissed.

37.	No further or other Order was sought, and no further direction is made.

Chairman:

Date and Place of Hearing:	22 September 2006, Belfast.

Date decision recorded in register and issued to parties: