FAIR EMPLOYMENT TRIBUNAL
CASE REF: 86/14FET
CLAIMANT: David Victor Beacon
RESPONDENT: John Thompson and Sons Ltd
DECISION ON A PRE-HEARING REVIEW
My decisions are as follows:
(A) The claimant’s contract claims are dismissed because they are time-barred.
(B) The claimant’s claims under the Fair Employment and Treatment Order are dismissed because they are time-barred.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Buggy
The claimant was self-represented.
The respondent was represented by Mr Barry Mulqueen, Barrister-at-Law.
1. I announced my decision at the end of the hearing. At the same time, I announced my reasons for that decision.
2. In broad terms, I regarded the claimant as an honest and reliable witness.
3. According to the claimant’s evidence and arguments, he has two contract claims. The first relates to the non-payment of commission. The second relates to a holiday in South Africa. The claimant brought his industrial and Fair Employment Tribunal claims in these proceedings on 10 October 2014.
4. The claimant is reminded that, although both of those contract claims are time-barred in the Fair Employment Tribunal, they can currently still be pursued in the County Court. (That court operates under much longer relevant time limits).
5. Contract claims in the Fair Employment Tribunal and in the industrial tribunal can only be brought in the circumstances envisaged by the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (“the 1994 Order”). Article 7 of the 1994 Order stipulates the time within which contract claims proceedings have to be brought within those tribunals. Article 7 of the 1994 Order provides as follows:
“7. An industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented –
(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim; or
(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated; or
(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable”.
6. It can be seen, accordingly, that Article 7 contains primary and secondary time-limits.
7. The relevant primary time-limits are set out in paragraph (a) and (b). The secondary time-limit is set out in paragraph (c). That secondary time-limit is only available if the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the applicable primary time-limit.
8. During the course of a Case Management Discussion (“CMD”) which was held in this case in January 2015, and during the course of this Pre-Hearing Review hearing, the claimant contended that a pro rata commission payment became due to him on 14 May 2014 (upon the termination of his employment with the respondent).
9. As I explained at the end of this hearing, I was constrained to decide that the claimant’s commission claim was time-barred in the tribunals, because it had not been lodged within the period of three months beginning with the date of termination of the claimant’s employment, and I was satisfied that it was feasible, within that period, to do so.
10. As I was explaining my reasons for regretfully deciding that the contract claims were time-barred, the claimant asked me if the position in relation to time-limits might have been different, if he had chosen (as he might well have done) to argue that the entitlement to a pro rata commission payment had only arisen at the end of July 2014. I told him that I thought the position was unlikely to have been any different in those circumstances. What follows is by way of brief explanation for that point of view.
11. Even if the entitlement to commission only crystallised at the end of July 2014, one of the primary time-limits set out at paragraph (a) and (b) of Article 7 would still be applicable. Both of those primary time-limits would have expired on or about 14 August 2014 (because the effective date of termination of the claimant’s contract of employment, and his last working day, occurred no later than 14 May 2014).
12. If the commission claim entitlement had not crystallized until 31 July 2014 would have had no difficulty in ruling that it was not reasonably practicable for the claimant to make a claim in respect of commission at any time prior to 31 July 2014. However, I would have felt constrained to decide that it would have been reasonably feasible for the claimant to bring his claim within the last fortnight of the applicable primary time-limit (within the period from 1 August until on or about 14 August inclusive). Accordingly, regrettably, in that situation, the secondary time-limit would never have become available to the claimant.
Date and place of hearing: 3 February 2015, Belfast
Date decision recorded in register and issued to parties: