Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2003] NIFET 375_2, [2003] NIFET 375_02

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 375/02FET

2012/02

APPLICANT: Ann Clifford

RESPONDENT: Homefirst Trust

DECISION OF THE TRIBUNAL ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that the application was not submitted within the specified time limit. It is not just and equitable in all the circumstances of the case for the tribunal to consider the Fair Employment Tribunal Application and this is dismissed. In respect of the Unfair Dismissal and Public Interest Order applications it was reasonably practicable for these to be submitted within the relevant time limit and those applications are also dismissed.

Appearances:

The applicant was represented by Miss Larkin, Barrister-at-Law, instructed by Michael Flanigan Solicitors.

The respondent was represented by Mr Crothers of Brangam Bagnall & Co., Solicitors.

The applicant was dismissed by the respondent on 18 April 2002. She submitted an Originating Application alleging unfair dismissal and public interest disclosure together with discrimination on the grounds of religious belief and/or political opinion. It was agreed that the relevant date of dismissal and for the Fair Employment Application was 18 April 2002. The Originating Application was submitted to the tribunal on 29 August 2002. The case came before the tribunal to determine the preliminary issues in relation to the time limits.

The reasons presented for the delay in submitting the applications within the relevant time limits related to the applicant's instructing Solicitor. The history of the claim was that the applicant had originally instructed her Solicitor in June 2000 in relation to an earlier Fair Employment Tribunal claim. When she was dismissed on 18 April 2002 she informed her Solicitor within days. Her Solicitor took instructions and comprised the letter of appeal to the respondent against the dismissal for gross misconduct. The Appeal hearing took place in August and Counsel instructed in respect of that advised that the Originating Application should have been submitted after the dismissal. It was conceded that the correspondence sent out to the applicant stated that she had summarily dismissed after a disciplinary hearing on 18 April 2002. The Solicitor, Ms Austin, gave evidence that she understood that the claim did not have to be submitted until the Appeal process was complied with although she was aware of time limits for both Unfair Dismissal and Fair Employment Tribunal applications.

The evidence established that the applicant was summarily dismissed on 18 April 2002, that she had been in contact with her Solicitor since June 2000 in respect of her other claim and immediately after her dismissal and up to and including her Appeal. In relation to the Unfair Dismissal application and Public Interest Disclosure application it was reasonably practicable for the claim to be submitted within the relevant time limit. It was conceded by Miss Larkin that in circumstances such as this it is usual for the applicant to suffer the consequences of such failure. However, she argued that in light of Human Rights Legislation the question of an advisor being at fault should not be construed so as to deprive an applicant of a remedy whether in respect of Unfair Dismissal or Public Interest Order cases. No precedent for such an argument was submitted and the tribunal found that time limits exist to ensure finality of proceedings and fairness to both parties. The tribunal was not prepared to accept that the Human Rights issue should remove time limits for presenting claims even where it is an advisor who is at fault rather than the applicant herself.

In respect of the Fair Employment application the tribunal again considered the circumstances of the case and the fact that the applicant had been represented throughout the relevant period. She had been dismissed and there were no facts discovered at a later date which would affect her claim. The applicant was aware of the issues from her previous Fair Employment claim which was ongoing throughout this period and which involved a preliminary hearing on time issues. The applicant's representative referred to the inter-linking of this case with her other case and referred to the question of an amendment to that application should this application to the tribunal be unsuccessful. No formal application to amend was made and the issue of amendment was not therefore considered by the tribunal.

No evidence was called from the applicant in relation to the delay in presenting her claim but the tribunal were satisfied that as she has a subsisting Fair Employment case she would have been aware of the relevant issues her other claim having been listed as a preliminary hearing in December 2001. Taking into account the applicant's history together with her ongoing interaction with both her Solicitor and Trade Union Representatives before and during the relevant period the tribunal were not satisfied that this was a case where it would be just and equitable to extend the time limit for presenting the claim. While the tribunal accepted the delay is not so significant as to give rise to prejudice to the respondent and the respondent will suffer the effect of not being able to proceed with her claim, we were of the view that the previous history and ongoing interaction with her legal advisor were of particular relevance and outweighed such considerations. For these reasons the Fair Employment Tribunal application was also dismissed.

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Date and place of hearing: 7 March 2003 in Belfast

Date decision recorded in register and issued to parties: