Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 356/03FET

5355/03

APPLICANT: Damien Joseph Harrison

RESPONDENT: Headlam (Floorcovering Distributors) Limited

t/a Mercado Belfast

DECISION ON A PRELIMINARY HEARING

The unanimous decision of the Tribunal is that the applicant's application 356/03FET was presented within the specified time limit but it is also the unanimous decision of the Tribunal that the applicant's claim to the industrial tribunal under number 5355/03 was not, and the tribunal considered that it would have been reasonably practicable for him to have lodged his industrial tribunal application within the appropriate period of three months.

Appearances:

The applicant was represented by Mr P Coll, Barrister-at-Law, instructed by James T Johnston & Co., Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Wilson Nesbitt Solicitors.

1. The tribunal ordered that the name of the respondent should be changed to Headlam (Floorcovering Distributors) Limited t/a Mercado Belfast.
2. Both parties at the outset of the hearing asked the tribunal to rule on a preliminary point in industrial tribunal application number 5355/03 as in respect of the applicant's industrial tribunal application, the same question of jurisdiction arose in that the application had not been presented before the expiration of three months from the date of termination of employment. Both parties indicated that they were prepared to present argument to the tribunal on the issue of whether or not it would have been reasonably practicable for the complaint to be presented before the end of the relevant period of three months. As this would save the matter being listed before an industrial tribunal to deal with essentially the same jurisdictional point, the tribunal agreed that to hear the jurisdictional point for both cases would be consistent with the over-riding objective.
3. The applicant who was the sole Catholic member of the respondent's workforce and who had nearly seventeen years of service was notified of this potential selection for redundancy on 19 May 2003 and that selection was confirmed to him on 26 May 2003.
4. By agreement, as the applicant had obtained another job, his employment was terminated on 8 June 2003. The applicant became aware on 18 June 2003 that there was a possibility that someone had been employed to take on his former job, but this was only actually confirmed to him on 30 June 2003. This was the date on which the new employee started. The applicant was also informed that this employee was a Protestant. The applicant's application to the Fair Employment Tribunal was signed by him on 16 September 2003, and the contention on behalf of the respondent was that it was outside the period of three months required by Article 46, as the respondent intended that the time began to run on effective date of termination of the applicant's employment.
5. Article 46(1)(a) of the Fair Employment and Treatment (Northern Ireland) Order 1998 sets out the applicable law as follows:-

"Subject to paragraph (5), the tribunal shall not consider a complaint under Article 38 unless it is brought before whichever is the earlier of :

(a) the end of a period of three months beginning with the day on which the applicant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of; "

6. Although the applicant admitted under cross-examination that he felt from the notification of redundancy, that his selection was unfair given the fact that he had given his 'life' to the company, the applicant stated and the tribunal accepted his evidence that it was only when he was actually told of the new employee's religion on 30 June 2003, that he felt that he had actually been discriminated against.
7. The tribunal found that 30 June 2003 was the first date upon which the applicant first had actual knowledge, or might even by expected first to have had knowledge of the act complained of which was that a Protestant employee was employed in the job from which he had been made redundant. There was no evidence from the respondent to suggest that the applicant had any earlier knowledge. The tribunal finds that the applicant's complaint is within time. As such, it is unnecessary for the tribunal to consider the issue of whether it would be just and equitable to extend the time.
8. The test in unfair dismissal law is different. If an industrial tribunal finds that the application has not been brought within the period of three months, then it is required to consider whether or not it would have been reasonably practicable or reasonably feasible for the applicant to bring his claim to the industrial tribunal. If the tribunal finds that it would not have been reasonably feasible, then it is required to consider whether or not the application was lodged within a reasonable time after the expiration of the period of three months.
9. The tribunal found that the applicant simply did not take action within the period of three months. The only thing preventing him lodging his claim was that he was trying to come to terms with his new employment (which was subject to a probationary period of six months) and was 'weighing it up'. The tribunal does not find that they are reasons which would justify the tribunal to hold that it would not have been reasonably practicable for the application to be lodged within the period of three months. Accordingly, the tribunal considers that it does not have jurisdiction to entertain the applicant's claim for unfair dismissal as Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 subject to paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal:

"(a) before the end of the period of three 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 three months".

Chairman:

Date and place of hearing: 26 January 2005, Belfast.

Date decision recorded in register and issued to parties: