`THE INDUSTRIAL TRIBUNALS 

CASE REF:	569/02

APPLICANT:		Raffaella Zurlo

RESPONDENT:		University of Ulster

DECISION

The unanimous decision of the Tribunal is that the applicant’s complaint must be dismissed because the tribunal has no jurisdiction to entertain those complaints.  
Appearances:
The applicant appeared in person.
The respondent was represented by Mr D Flanagan, Barrister-at-Law, instructed by Mr O McCullough, of the Human Resources Department, University of Ulster.

REASONS

1.	These reasons are given in extended form.

The claims

2.	At various dates between August 2000 and February 2001, the applicant in these proceedings, Raffaella Zurlo, carried out work as a translator and interpreter for the respondent, University of Ulster.  In her Originating Application in these proceedings, the applicant complains that the respondent has failed to give her holiday pay in connection with that work.  

The preliminary issue

3.	The following preliminary issue was listed for determination by us:-

“Whether the tribunal has jurisdiction to entertain the applicant’s complaint in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order [the ‘Order’] 1996 in relation to the time limit for presenting the claim”.
4.	Article 55 of the 1996 Order specifies the time limits which have to be met in relation to a complaint of unlawful deductions from wages.  

5.	Although we are satisfied that the applicant’s statement of complaint (as set out in her Originating Application) includes a complaint of unlawful deductions, we are also satisfied that, in the circumstances of this case, it is right to construe her application as including a complaint that the failure to make payments in respect of holiday pay or the breach of the Working Time Regulations (Northern Ireland) 1998.  

6.	Accordingly, with the agreement of the respondents, we directed that the preliminary issue should be amended so as to read as follows:-

“Whether the tribunal has jurisdiction to entertain the applicant’s complaint in view of:-

1.	the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 in relation to the time limit for presenting the claim; and

2.	the provisions of Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 [the ‘Regulations’].

The statutory framework

7.	Article 55(2) sets out what amounts to a primary time limit in respect of complaints to an Industrial Tribunal in relation to alleged unlawful deduction of wages.  Under Paragraph (2) of that Article, an Industrial Tribunal does not have jurisdiction to consider a complaint of unlawful deductions unless it is presented before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made.  However, Paragraph (4) of the same Article goes on to provide that, where the Industrial Tribunal is satisfied that it was not reasonably practicable for a complaint of unlawful deductions to be presented within the primary time limit, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.  

8.	So far as material, the provisions of Regulation 30 of the Regulations, in relation to time limits, are to the following effect.  An Industrial Tribunal is precluded from considering irrelevant complaints under the Regulations unless it is presented within the primary time limit prescribed in Paragraph (2) of Regulation 30.  That primary time limit expires at the end of the period of three months beginning with the date in which it is alleged that the payment should have been made.  However, Sub-Paragraph (d) of the same paragraph goes on to provide that, even if the primary time limit is not met, a tribunal can consider a relevant complaint (of breach of the Regulations) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaints to be presented within the primary time limit.  

9.	Accordingly, for present purposes at any rate, the time limit provisions of Article 55 of the Order and the equivalent provisions of Regulation 30 of the Regulations can be regarded as identical.  Furthermore, both sets of time limit provisions can be regarded, again for present purposes, as being cast in identical terms to the time limit provisions in respect of unfair dismissal which are set out at Article 145 of the Order.  

10.	The applicant frankly accepted, and the tribunal concludes, that she did not meet the primary time limit set out in Article 55 of the Order, or the primary time limit set out in Regulation 30 of the Regulations.  Accordingly, in the context both Article 55 and Regulation 30, the first key question is whether or not the tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the primary time limit.  If that first key question is not resolved in favour of the applicant, the proceedings have to be dismissed on the basis of non-compliance with each relevant time limit.  

The evidence

11.	We heard evidence from the applicant, who we regard as an honest witness.  

12.	The tribunal also sought the following documents:-

(1)	A written statement from the applicant, which she used as the basis for her direct evidence in these proceedings.

(2)	A letter from the Labour Relations Agency to the applicant, dated 29 November 2002.

(3)	Various miscellaneous e-mail correspondence between the applicant and respondent.

(4)	A Labour Relations Agency information note, Information Note Number 5 (the September 2001 edition).

13.	From the evidence which we saw and heard, we made the following findings of fact:-

(1)	The applicant is of an Italian origin.  She worked for a considerable period in Germany, before coming to Northern Ireland in January 1999.

(2)	The applicant has a very good command of English and worked for the respondent as a translator and interpreter.

(3)	The applicant is confident and capable and intelligent.

(4)	Although the applicant’s claims for holiday pay entitlements in these proceedings are based on entitlements allegedly accrued in respect of work carried out between September 2000 and February 2001, the Originating Application in these proceedings was not presented until 26 February 2002.

(5)	The applicant was unaware of the fact that she might have an entitlement to holiday pay until 4 December 2001.  On that date, she became of a possible entitlement to holiday pay because of her contact with the Labour Relations Agency on that date.

(6)	The applicant could have the Labour Relations Agency at any earlier date, at any time from September 2001 onwards.  She contacted them in December 2001 mainly because she was unhappy because, at that time, she was doing translations from home and on some occasions was paid less than she expected, although some translations took her longer due to their complicity.  

(7)	After her contacts with the Labour Relations Agency, she contacted the respondent, with a view to arriving at an agreed settlement in respect of the holiday pay claims.  However, by the date of presentation of these proceedings, the respondent had not been willing to arrive at a settlement.

The submissions

14.	The main submissions of the parties can be summarised as follows:-

(1)	The applicant asserted that the tribunal bend the time limits because it was understandable that she was unaware, until December 2001, of her possible entitlements.  She was, according to herself, a ‘foreigner’ in Northern Ireland.  She had spent a long time in Germany.  She knew that every system has quirks.  She didn’t know that under Northern Ireland law, there were entitlements to holiday pay.

(2)	According to the respondent, the applicant did not show that it was not reasonably practicable for her to present a complaint within the primary time limit.  Although she may have been unaware of her rights until her contact with the Labour Relations Agency in December 2001, that did not make presentation of the complaint impracticable, because it arose from the fault of the complainant in not making such enquiries as she should have reasonably in all the circumstances have made.  In this regard, Mr Flanagan, for the respondent, drew our attention to the commentary which is set out at Paragraph 197 to 208 of ‘Harvey on Industrial Relations and Employment Law, at Division G and T’.

The law

15.	In the context of each of the two relevant time limits, it is for the complainant to show that it was not reasonably practicable to present the complainant’s claim in time.  The burden of proving this rests on the applicant.  The principles which have emerged from the case law on the unfair dismissal time limit are principles which apply also in the context of the two relevant time limits in these proceedings.  

16.	A potential complainant’s ignorance of a time limit can be regarded as an impediment making it not reasonably practicable for her to present a complaint within the primary time limit, but only if the ignorance is itself reasonable.  Such ignorance will not be reasonable if it arises from the fault of the complainant in not making such enquiries as she should reasonably in all the circumstances have made.  

Conclusions

17.	With regret, we have concluded that, in the case of each time limit, the applicant has not satisfied us that it was not reasonably practicable for her to present her complaint within the primary time limit.  Although the applicant’s failure to present her complaint within the primary time limit is attributable to her ignorance as to the relevant statutory provisions in relation to time limits, that ignorance was the result of the applicant’s error as to her rights prior to December 2001; in the circumstances, the applicant’s ignorance as to her rights arises from her omission, in that she did not make, in a timely fashion, such enquiries as she should reasonably have made in all the circumstances.

Chairman:

Date and place of hearing:		4 December 2002, Belfast

Date decision recorded in register and issued to parties: