Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2004] NIFET 282_2, [2004] NIFET 282_02

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FAIR EMPLOYMENT TRIBUNAL

CASE REF: 282/02FET

APPLICANT: Neil Smyth

RESPONDENT: MDF Engineering LTD

DECISION

The unanimous decision of the Tribunal is that this originating application was presented outside the time limit laid down in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 and it would not be just and equitable in all the circumstances of the case to consider the complaint. The originating application is therefore dismissed. The title of the respondent is amended to that shown above.

This decision is given in extended form because the Tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision

Appearances:

The applicant appeared in person and gave evidence.

The respondent was represented by Mr G Howard of Peninsula Business Services Limited.

The applicant alleged that he had been unlawfully discriminated against on the grounds of his religious belief and political opinion. The applicant's complaint which was received in the Office of Tribunals on 19 June 2002 was as follows:-

I was employed as a CNC operator with the respondent from the 8th October 2001. On the 7^th March 2002 a fellow employee informed me that there was graffiti written on the toilet wall, about me, making reference to my religion and previous employment as British Soldier. I left my work station and went to the toilet to see what was written. On the wall was the following; "NEIL SMYTH BRIT ORANGE BASTARD, BRITS OUT R.I.P I.N.L.A". I immediately reported this to my supervisor his comment was "oh right". I went to work the following day 8/3/02 the graffiti was still on the wall, as the day before, and no action had been taken. I again reported it to my supervisor, who decided to report it to the manager, Mr P McLaughlin. No action was taken. On returning to work for 7 days from 7/3/02 no action was taken. I decided to take a photograph to seek advice. On approximately 9/3/02 Mr McLaughlin, Manager brought me to his office and informed me: 1. what did it say in the toilet? as he had not bothered to check, and 2. These things happen in Northern Ireland and take it with a pinch of salt. There was nothing he could do. The writing remained on the wall and due to the distress and fear for my safety I commenced sick leave on around the 14/3/02. On advice from my father, he approached M.D.F. Mr McLaughlin, to attempt to address the situation and there procedures for addressing such intimidation and harassment. My father then reported incident to PSNI. I stayed on sick leave for approximately 2 weeks. On the first day of returning I was informed that my work was not up to scratch. I have had continuous phone calls from MDF refusing to accept my resignation and forwarding my P45.

Having heard evidence from the applicant, Pascal McLaughlin, the respondent's general manager, Damien McKee, the respondent's purchasing manager, Jane Millar the respondent's human resource manager, Enda Quinn and Joseph Quinn and having seen the applicant's attendance card the Tribunal accepted, contrary to the information set out in the originating application that the events complained of did not occur on the dates given in the originating application or as given in evidence by the applicant but were as set out below in paragraphs 3 to 8.

On 28 February 2002 the applicant was informed by a fellow worker that there was graffiti written about him in the toilets in the terms set out in the originating application. The applicant reported this to his supervisor Joseph Quinn as soon as he saw it and Joseph Quinn immediately in turn reported it to Enda Quinn who was operations manager and both Joseph Quinn and Enda Quinn went and informed Mr McLaughlin of the presence of the graffiti. Mr McLaughlin instructed Mr McKee to have the graffiti removed and Mr McKee then instructed the janitor to remove the graffiti. These steps were all taken speedily and before lunch time on 28 February 2002. Mr McLaughlin spoke to the applicant later on in the afternoon and informed him that the matter was being dealt with and asked him if he had any idea who had written the graffiti and if so the person concerned would be disciplined. However the graffiti was not removed and neither Mr McLaughlin nor Mr McKee checked to see if it had been removed.

On Friday 1 March 2002 the applicant came to work and found the graffiti had not been removed. He was then involved in an incident with his supervisor Joseph Quinn who had pointed out a mistake to him. Joseph Quinn reported the mistake to Enda Quinn as he was required to do and also his upset and annoyance at the applicant's aggressive behaviour towards him. Joseph Quinn and Enda Quinn then informed Mr McLaughlin about this situation. The applicant was brought to see Mr McLaughlin in relation to his mistake. After discussing the mistake with the applicant Mr McLaughlin did not take any further steps in relation to the mistake. He also did not ask the applicant anything about the graffiti. The applicant then left his place of work at lunchtime and did not return that day.

The applicant attended for work again on Monday 4 March 2002. He found the graffiti was still there and he immediately left the premises. He continued to stay away from work and sent in a sickness certificate which covered him from 4 March 2002 for two weeks. Enda Quinn on Monday 4 March 2002 informed Mr McLaughlin that the graffiti had still not been removed. He issued further instructions to Mr McKee to have the graffiti removed and Mr McKee instructed the janitor and informed him that he personally would check that the graffiti was removed.

The applicant returned to work on 19 March 2002 and worked from then until 12 April 2002. He then had five days sick leave and thereafter he had two weeks authorised leave on the occasion of his marriage and honeymoon. He was then on sick leave from 7 May 2002 until 22 May 2002 for various physical ailments. He sent a letter to the respondent which was undated but was received on 22 May 2002 which read:

"I am writing to you to give my notice to terminate my contract from 15/05/02 as I have felt that MDF is no longer a safe environment to work in since the incident in March 2002 (death threat). I would be grateful if you could forward my P45 and monies owing A.S.A.P."

The applicant's originating application dated 16 June 2002 arrived by post with the Tribunal on 19 June 2002.

By letter also dated 19 June 2002 Jane Millar wrote to the applicant asking him to contact her and saying "I am concerned about the contents of the letter and in particular the reason you gave for your resignation."

The applicant had consulted the Commission in relation to the incidents surrounding the graffiti in mid-March 2002. He received advice at that time with regard to the time limits for presenting his complaint. The applicant filled in his originating application around the end of March. He did not however lodge it with the Tribunal at that time.

The applicant maintained that he was so stressed in the period between March and June that he did not register his complaint until 19 June 2002 despite knowing about the time limits for presenting complaints both from his training in the respondent company and advice from the Commission. He claimed in his closing submission that Ms Millar's letter of 19 June 2002 was a further act of discrimination. He maintained the stress caused to him by the graffiti and the respondent's failure to remove it immediately had caused him to fail to put his originating application in on time. He also pointed out that he had been off on sick leave and that the stress of getting married and being away on honeymoon also played a part.

The Tribunal having considered all the evidence did not find the applicant to be a credible witness. The Tribunal was satisfied that the applicant was aware at the time he presented his originating application that it was out of time in relation to the incidents which occurred on 28 February 2002 and 1 March 2002. The Tribunal did not accept the applicant's submission that Ms Millar's letter even if he had received it prior to posting his originating application to the Tribunal constituted a continuing act of discrimination which would have brought his complaint within time.

The Tribunal could well accept that the applicant was stressed and worried in relation to the graffiti and annoyed at the respondent's failure to have it removed as soon as it was brought to the general manager's attention. However, the Tribunal noted that the applicant had returned to work and worked without incident alongside his colleagues for a period of four weeks, that he had also had a period of two weeks authorised leave for his honeymoon and that he failed to return to work thereafter albeit while sending in sickness certificates. The Tribunal also noted the applicant's evidence that he was no longer ill after 22 May 2002 and was looking for other work. In these circumstances the Tribunal did not accept that the reasons given by the applicant for his failure to present his originating application within the time limits laid down in Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 were sufficient to make it consider that it would be just and equitable to consider the applicant's complaint. In coming to this decision the Tribunal took into account the inconsistencies in the dates and information given by the applicant in the originating application and in the evidence given by the applicant. In these circumstances

the Tribunal concluded that it would not be just and equitable to extend the time for considering this complaint and the originating application given case reference number 282/02FET is hereby dismissed.

Chairman:

Date and place of hearing: 2, 3 and 4 November 2004, Belfast.

Date decision recorded in register and issued to parties: