Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 234/02FET

1194/02

APPLICANT: Paul Bird

RESPONDENTS: 1. Laurence Holland

2. Royal Mail Group PLC

T/A Parcelforce Worldwide

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that the application is dismissed.

Appearances:

The applicant attended and was unrepresented.

The respondents were represented by Mr McArdle Barrister-at-Law instructed by Orla O'Neill Solicitor of Napier & Sons.

1. The case came before the tribunal to deal with the following preliminary issue:-

"Whether the tribunal has jurisdiction to entertain the applicant's claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his claim. The tribunal also considered whether the application was submitted within the time limit specified in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998.

The applicant was employed by the respondents from October 1998 until his dismissal on 13 February 2002. The originating application alleged that the applicant had been discriminated against on the grounds of his religion by the respondents. He also claimed that he had been unfairly dismissed by the respondents. At the outset of the hearing Mr McArdle applied to amend the title of the second named respondent to Royal Mail Group PLC and Parcelforce Worldwide. This application was accepted by the tribunal and the name of the second named respondent was amended accordingly. The originating application to the tribunal was lodged on 14 May 2002 and the respondent argued that this was outside the time limit specified for both the unfair dismissal and the Fair Employment claim.

2. The tribunal firstly considered the unfair dismissal application. It was agreed that in relation to the provisions of Article 145 of the Employment Rights Order, the application should have been presented on 13 May 2002 and was therefore one day late. The tribunal considered the provisions of Article 145 in the light of the evidence of the applicant as to whether it was reasonably practicable for the application to be presented within the three-month period. The tribunal heard oral evidence from the applicant that he did not complete his application form until Saturday 11 May 2002 and posted it on Sunday 12 May expecting it to be delivered the next day. The applicant admitted that he was aware of the deadline for presenting his claim and had been so advised by a solicitor and his full-time trade union official, Mr Cooke. The tribunal found that there was nothing to prevent the application from being submitted on time. We found that even if the application was posted by first-class post it was reckless to expect it to be delivered the next day especially when it was posted on a Sunday. The respondents relied on the case of Consignia plc –v- Seely [2002] EWCA CIV at 878 to support the argument that "The normal and expected result of posting a letter must be objectively, not subjectively assessed and it is that the letter will arrive at its destination in the ordinary course of post. A complainant knows that he/she is taking a risk if the complaint is posted by first-class post on the day before the guillotine falls, and it will be absurd to hold that it was not reasonably practicable for it to be presented in time it arrives in the ordinary course of post on the second day after it was posted. The post will have taken its usual course and nothing unexpected will have occurred". The tribunal did not accept that there was any other impediment to the applicant submitting his application within the required time limit and notwithstanding that the application was only one day late found that it had been reasonably practicable for the application to be presented before the deadline. The applicant had argued that he was a long distance lorry driver who was frequently out of the country but his travelling routine had not required him to be continuously outside the country during the relevant period. The tribunal did not accept that his work caused any impediment to his submitting his application within the time limit and the application was therefore rejected.
3. In respect of the Fair Employment Tribunal application the applicant's case was that he had been harassed by his manager Laurence Holland. It was clear from the chronology events that Mr Holland's involvement in the case ceased on 17 January 2002 when he issued the applicant with a precautionary suspension. The applicant accepted in his evidence that his case of discrimination was directed at Mr Holland and the result of this was that his case should have been submitted to the tribunal by 17 April 2002. The applicant argued that he had been advised by his solicitor and trade union representative that the deadline was 13 May 2002. The time limit set out in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 makes it clear that the time limit runs from when the act complained of took place or when the applicant first had knowledge of that act. The applicant in his originating application clearly complained about Mr Holland's conduct during the period 5 January 2002 to 17 January 2002 when Mr Holland's input into the case ceased. He did not allege discrimination against other managers who subsequently dealt with the case after Mr Holland nor did the applicant raise any allegation of discrimination in respect of his dismissal or appeal.
4. In view of the fact that the application was submitted outside the relevant time limit the tribunal had to consider whether it was just and equitable to extend the time limit in all the circumstances of the case. The tribunal considered the applicant's evidence was that he was told that the time limit of three months from dismissal by his advisers. As stated earlier the tribunal had heard evidence from the applicant that he was a long distance driver who was regularly out of the country for periods of up to two weeks at a time and again this was his explanation for failing to seek advice and submit his Fair Employment Tribunal application earlier. The tribunal however considered the case in the light of the issues raised and found that there was no reason put forward which would lead us to believe that it was just and equitable to extend the time limit for presenting the claim. The applicant suffered no impediments and had been in receipt of advice from his full-time trade union official at an early stage and during his appeal. Neither was there any reason to prevent him obtaining legal advice at an earlier stage. While the tribunal did not find that there would be significant prejudices to the respondents if the case was permitted to proceed, we did not accept that it would be just and equitable to extend the time limit for presenting the claim in these circumstances and the application is therefore dismissed.

Chairman:

Date and place of hearing: 14 November 2003, Belfast.

Date decision recorded in register and issued to parties: