Court of Appeal in Northern Ireland Decisions

Neutral Citation No: [2012] NICA 44	Ref:	MOR8621
Judgment: approved by the Court for handing down	Delivered:	16/10/12
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________

BETWEEN:

SOFIA FONTAN

Applicant;

-and- TELETECH UK LTD

Respondent.

________
Before: Morgan LCJ, Higgins LJ and Girvan LJ ________

MORGAN LCJ (delivering the judgment of the court)

[1] This is an application for an extension of time in which to lodge an appeal against a decision by the Industrial Tribunal dismissing the applicant's claim for wrongful dismissal and age discrimination. The following facts are taken from the findings made by the Industrial Tribunal.

[2] The applicant applied for a job with the respondent and was interviewed by telephone. On 21 December 2010 she was offered the job of customer service representative. She was provided with the contract of employment on 23 December 2010. The contract of employment indicated that the first 12 weeks of her employment with the company was a probationary period. During that period performance and suitability for continued employment would be monitored. During the probation period the company reserved the right to terminate at any time her employment on one week's written notice. The applicant commenced employment on 10 January 2011.

[3] On the first day of employment the applicant along with the other new trainees was informed that there would be an assessment at the end of the training period. She was informed that continued employment was dependent on passing the assessment. The applicant and the other seven trainees sat the assessment test on 18 January 2011. The other seven trainees achieved the 80% pass mark but the applicant achieved a mark of only 58%. When she was interviewed the applicant said that she had been feeling unwell and taking medication for pain that made her sleepy. As a result of this she had been unable to concentrate during her training. She was given the option of resitting the assessment test the following day or alternatively taking up a position on a new contract. She decided to resit the assessment on 19 January 2011 and achieved a score of 29%. In light of her figure she was dismissed on 21 January 2011. She appealed that decision but her internal appeal was unsuccessful on 17 March 2011.

[4] On 12 April 2011 she issued a claim form in the Industrial Tribunal alleging wrongful dismissal and age discrimination. The respondent's business is the provision of call centre services for a number of international clients. The contract upon which the applicant was trained related to Nissan. The applicant complained that she had been dismissed for not passing a test of standards set by Nissan. She also complained that she had been picked on by the trainer and that the test result did not properly reflect her ability because of the medication she was taking. She alleged that one person saw the test prior to setting the assessment and others had been advised of the likely questions. She was the oldest trainee and her case was that she had been treated less favourably as a result of age.

[5] Her case came on for hearing on 10 October 2011 and she indicated at that stage that she wished to pursue a race discrimination claim in addition to the claims already before the tribunal. After some discussion with the tribunal she decided not to pursue that further. The case proceeded on the issues which had been identified as a Case Management Discussion on 6 July 2011.

[6] The tribunal rejected the applicant's claim in a decision issued on 14 December 2011 and in particular concluded that where there was a conflict of evidence between the applicant and her trainer the Tribunal preferred the evidence of the trainer. By letter dated 27 December 2011 the applicant sought a review of the decision setting out various criticisms of the evidential conclusions reached by the tribunal. By letter dated 9 February 2012 the tribunal declined to review the decision. On 28 February 2012 the applicant lodged a summons to extend time to appeal and on 5 July 2012 lodged a notice of appeal on the grounds that the decision of the tribunal was Wednesbury unreasonable. Order 60B Rule 1(2) of the Rules of the Court of Judicature provides that an appeal must be lodged within six weeks of the applicant receiving a copy of the decision of the industrial tribunal. The appeal period, therefore, expired in late January 2012.

[7] This court reaffirmed the principles applying to an application to extend time to lodge a notice of appeal in Magill v Ulster Independent Clinic [2010] NICA 33 where it said:-

"[12] In Davis v Northern Ireland Carriers [1979] NI 19 Lowry LCJ reviewed the authorities and enunciated the relevant applicable principles in relation to an application to extend time for an appeal. At 20A-D he stated:

'Where a time limit is imposed by statue 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 such as is that found in Order 64 r 7 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 stated) which could not otherwise be put forward; and

(6) whether the point is of general and not merely particular, significance.

To these I add the important principle;

(7) that the rules of court are there to be observed'.

[13] In that case Lowry LCJ concluded his judgment in the following terms which have a clear resonance in the present case:

'If we had left the case here my view would undoubtedly have been that the delay had not been satisfactorily explained and, that all the more so because there had been a hearing on the merits (which must, judged by the very exhaustive and obviously careful written decision, have been both full and painstaking), the application should be refused.

We decided, however, that in order to do justice it would be better to find out the strength of the appellant's case, so far as it was founded on points of law and therefore remained capable of being pursued by way of case stated. We therefore discussed the legal merits of the case in some detail .....It is not, however, necessary to expatiate on this branch of the case, if only because it may come before this court in another guise. I am content to say that nothing emerged to make me feel that justice demanded an extension of time in face of the principles to which I have already adverted'."

[8] In this case the applicant offers the excuse that she did not pursue her appeal because her application for a review was outstanding. We appreciate that the applicant is a personal litigant but it is her responsibility to ensure that she complies with the Rules of the court. It would have been open to her to apply for an extension of time within the six-week period prescribed for an appeal. In her favour is the fact that the respondent has indicated that it would not be prejudiced by the grant of the extension. The applicant has, however, had a hearing on the merits and the points which she wishes to pursue are largely criticisms of the tribunal in its approach to fact-finding. There is no general point of law raised by this appeal.

[9] In order to determine this application for leave to extend time we have carefully considered the issues which the applicant wishes to pursue. Evidence was adduced that the trainer indicated to a colleague by e-mail of 17 January 2011 that she was concerned that the applicant might have difficulty with the test. Copies of the email were produced by the respondents but it appeared that they did not send the applicant at her request the original e-mail. She contended that the e-mail had been fraudulently created to support the respondent's case. That was an issue which was squarely before the tribunal which had the opportunity to see and hear the witnesses and come to a conclusion as to whether they were telling the truth. We can detect no error of law in the approach taken by the tribunal.

[10] The applicant contends that the marking of the practical test enabled the respondent to manipulate the pass mark so as to fail her and pass others. Apart from the applicant's assertion there appears to be no evidence to support that proposition. The applicant asserts that this was with a view to fulfilling the age average that the respondent has in its call centre which at another part of her submissions the applicant says is 20. In fact among the trainees there were two who were in their 40s and both were passed. The applicant asserts that one other person failed the test but again produces no evidence to suggest that the tribunal erred in rejecting that assertion. There was a clear difference in evidence between the applicant and the trainer asked to monitor her performance during the training which it was for the tribunal to determine. The applicant seems incapable of accepting that the evidence of the trainer was evidence upon which the tribunal was entitled to act.

[11] Her suggestion that the test based on Nissan products was in some way inappropriate seems completely without foundation since those being trained were expected to work in relation to that product. In our view there is no arguable case made by the applicant which would justify the extension of time for lodging a notice of appeal. Under the terms of the contract the respondent was entitled to terminate the contract in light of the applicant's poor performance.

[12] Accordingly we refuse the application.