Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 126/05FET

888/05

CLAIMANT: David McDowell

RESPONDENTS: 1. Shop Electric Limited (In Liquidation)

2. KPMG Administrators

DECISION

The unanimous decision of the Fair Employment Tribunal in regard to the preliminary issues to be determined is that the Tribunal does not have jurisdiction to entertain the claimant's complaints regarding the statutory time limits for presenting these complaints and it is not just and equitable in all the circumstances of the case for the Fair Employment Tribunal to consider the claim despite the fact that it is out of time.

Constitution of Tribunal:

Chairman Mr J V Leonard

Appearances:

The claimant did not appear and was not represented

The respondent was represented by Mr Peter Martin, Solicitor, of Arthur Cox, Solicitors.

REASONS

1. The Tribunal did not hear oral evidence but considered the claimant's complaint to the Tribunal and the respondents' response thereto and heard submissions on behalf of the respondents.
2. In his claim to the Tribunal the claimant stated, "It was unfair that I did not receive any notice. However recently members of the Shop Electric Union received 56 days pay for lack of notice. I was not a member of Shop Electric Union but I feel that if union members get 56 days it is discrimination against non union members". The claimant claimed that this constituted political discrimination. He further stated that his employment with Shop Electric Limited came to an end on 31 October 2003. The claim was received by the Office of the Industrial Tribunals and Fair Employment Tribunal on 6 June 2005. In their response, the respondents stated that the claimant had been dismissed, on grounds of redundancy, by letter dated 3 November 2003. The complaints on the part of the claimant were denied and it was contended that the complaints had been presented out of time.
3. The complaints were taken by the Tribunal as constituting complaints of, respectively, unfair dismissal, breach of contract and unlawful discrimination on grounds of religious belief or political opinion. By Order dated 16 August 2005, it was ordered that, insofar as the Fair Employment Tribunal might deem appropriate, the complaints should be heard and considered together.

THE ISSUES

4. The Tribunal dealt with these complaints as, respectively, constituting complaints of unfair dismissal, breach of contract and unlawful discrimination, all such being dealt with by the Fair Employment Tribunal under Article 85 of the Fair Employment and Treatment (Northern Ireland) Order 1998 on foot of an Order dated 16 August 2005. The Tribunal considering the content of the claimant's claim and of the respondents' response thereto, and the Tribunal further heard submissions on behalf of the respondents. The respondents' representative contended, in the absence of the claimant being in attendance before the Tribunal to make any case, that the complaints were clearly out of time and that accordingly the Tribunal had no jurisdiction and ought properly to dismiss the complaints. The matter was listed for hearing for the Tribunal to determine the preliminary issues, set out as follows:-

(a) "Whether the Tribunal has jurisdiction to entertain the claimant's complaint in view of the provisions of Article 145 of the Employment Rights (NI) Order 1996 regarding the time limit for presenting his complaint".

(b) "Whether the Tribunal has jurisdiction to entertain the claimant's claim in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limit for presenting a claim".

(c) " 1. Was the claim presented within the specified time limit.

2. If not, is it just and equitable, in all the circumstances of the case, for the Fair Employment Tribunal to consider this claim despite the fact that it is out of time. "

THE TRIBUNAL'S FINDINGS

5. On foot of such evidence as was before it the Tribunal made findings of fact material to the issues as follows:-

(a) The claimant was employed by Shop Electric Limited as a sales assistant. This employment commenced in January 2000.

(b) On 31 October 2003, Richard Dixon, J W Ray Jackson and Julian R Whale were appointed joint Administrators of Shop Electric Limited on foot of an Administration Order. The business closed that day and the joint Administrators took a swift decision to announce redundancies. The claimant was dismissed on the grounds of redundancy by letter dated 3 November 2003 from the Administrators. 3 November 2003 is the effective date of termination for computation of time in this matter.

(c) J W Ray Jackson was appointed Liquidator of Shop Electric Limited (In Liquidation) at a meeting of creditors held on 23 March 2005.

(d) The Tribunal did not need to determine any further findings of fact for the purposes of these proceedings.

THE APPLICABLE LAW

6. An employee has a right not to be unfairly dismissed by his employer under Article 126 of the Employment Rights (Northern Ireland) Order 1996 ("the said 1996 Order"). Under Article 145 of the said 1996 Order, a complaint may be presented to an Industrial Tribunal against an employer by any person that he was unfairly dismissed by the employer. However 145(2) of the said 1996 Order provides that an Industrial Tribunal shall not consider a complaint under that Article unless it is presented to the Tribunal (a) before the end of the period of 3 months beginning with the effective date of termination, or (b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of 3 months.
7. The Tribunal's jurisdiction for breach of contract derives from the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 ("the said 1994 Order"). Article 3 of the said 1994 Order allows proceedings to be brought before an Industrial Tribunal by an employee for damages or any other sum (other than in relation to personal injuries) if, inter alia, the claim arises or is outstanding on the termination of the employee's employment. Article 7 of the said 1994 Order provides that such a claim must be presented to an Industrial Tribunal (a) within 3 months beginning with the effective date of termination or, (b) where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that time, within such further period as the Tribunal considers reasonable.
8. Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 ("the said 1998 Order") provides that a Tribunal shall not consider a complaint under Article 38 (a complaint of unlawful discrimination under the terms of the said 1998 Order) unless it is brought before whichever is the earlier of, (a) the end of the period of 3 months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; or (b) the end of the period of 6 months beginning with the day on which the act complained of was done. Article 46(5) of the said 1998 Order provides that a Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.
9. Article 85 of the said 1998 Order provides that matters which would otherwise fall to be determined by an Industrial Tribunal may be the subject of a direction by the President or Vice-President of the Industrial Tribunals and the Fair Employment Tribunal that such matters shall be heard and determined by the Fair Employment Tribunal and that Tribunal shall in relation to those matters have the jurisdiction and may exercise all the powers of an Industrial Tribunal.

THE TRIBUNAL'S DETERMINATION

10. Having applied the relevant principles of law contained in the foregoing statutory provisions to the facts, the Tribunal notes that the effective date of termination of employment from which time runs is, in this case, 3 November 2003. The claimant's complaint was received by the Office of the Industrial Tribunals and Fair Employment Tribunal on 6 June 2005.
11. In regard to the complaints taken by the Tribunal to be complaints of, respectively, unfair dismissal and breach of contract, the statutory provisions referred to above provide that such complaints must be presented to the Tribunal before the end of the period of 3 months beginning with the effective date of termination or within such further period as the Tribunal considers reasonable in a case where it was satisfied that it was not reasonably practicable for the complaints to be presented before the end of that period of 3 months.
12. In this case, there is no evidence before the Tribunal upon which it could base any decision that it was not, or might not have been, reasonably practicable for the claimant to have presented his complaint within the period of 3 months provided by statute. Therefore there is no basis upon which the Tribunal may make any other determination but that the complaints of, respectively, unfair dismissal and breach of contract were presented outside the statutory time period and it was reasonably practicable for the claimant to have presented his complaint within the said period of 3 months.
13. In regard to the complaint of unlawful discrimination, Article 46 of the Fair Employment and Treatment (Northern Ireland) Order 1998 provides that the Tribunal shall not consider a complaint of unlawful discrimination unless it is brought before whichever is the earlier of the period of 3 months beginning with the day upon which the complainant first had knowledge or might reasonably be expected to first to have had knowledge of the act complained of, or the end of the period of 6 months beginning with the day in which the act was done, whichever is the earlier. Therefore, at maximum, such a complaint must be brought before the end of the period of 6 months beginning with the day on which the alleged discriminatory act was done.
14. In this case, considering the claimant's complaint as set out in the Originating Application, the Tribunal determines that the act complained of cannot be anything other than the act of dismissal of the claimant. That occurred on 3 November 2003. As time runs from that date, the complaint is therefore considerably out of time. It is however provided that the Tribunal may nonetheless consider such a complaint which is out of time if in all the circumstances of the case the Tribunal considers that it is just and equitable to do so. In the absence of any material evidence or submissions, the Tribunal sees no basis upon which it would be entitled to hold that extension of time for the consideration of such a complaint is in all the circumstances just and equitable.
15. The foregoing being the case, the Tribunal sees no statutory or other basis upon which it can make any other determination but that the complaints of the claimant are out of time with no reason to extend time, and accordingly the Tribunal dismisses the complaints of the claimant, without further Order.

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Date and place of hearing: 28 October 2005, Belfast

Date decision recorded in register and issued to parties: