Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 32/06 FET

331/06

CLAIMANT: Henry J McGucken

RESPONDENTS: 1. Meinscoil Feirste Teach Ard Na Blfea

2. Belfast Education and Library Board

DECISION ON A PRE HEARING REVIEW

The unanimous decision of the Tribunal is that:-

(i) The claim alleging political discrimination is out of time under article 46 (1) of the Fair Employment and Treatment (NI) Order 1998 and that it would not be just and equitable in the all the circumstances of the case, for the Fair Employment Tribunal to consider this claim despite the fact that it is out of time.

(ii) The claim for unfair dismissal is out of time under article 145 of the Employment Rights (NI) Order 1996 and it was reasonably practicable for the claimant to have brought such a claim within 3 months of the effective date of termination of employment of the 6 September 2005.

(iii) The claim under the Working Time Regulations (NI) 1998 is out of time under regulation 30 of the said regulations.

(iv) The claim for breach of contract under article 7 of the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994 is out of time.

(v) The claim for unauthorised deduction from wages is out of time under article 55 of the Employment Rights (NI) Order 1996;

(vi) All of the above claims are therefore dismissed.

Constitution of Tribunal:

Chairman: Mr S A Crothers (Chairman sitting alone)

Appearances:

The claimant was present and represented himself.

The respondents were represented by Mr M Brown Solicitor for the Education and Library Boards.

1. The Tribunal heard evidence from the claimant and was presented with documentation by the claimant together with a written statement.
2. The issues before the Fair Employment Tribunal and the Industrial Tribunal were as follows:-

(i) Whether the claim alleging political discrimination had been presented in time in accordance with article 46 (1) of the Fair Employment and Treatment (NI) Order 1998 and if not, is it just and equitable, in all the circumstances of the case, for the Tribunal to consider this claim despite the fact that it is out of time.

(ii) Whether the claim for unfair dismissal had been presented in time and, if not, was it reasonably practicable for the claim to be presented in the time limits laid down in article 145 of the Employment Rights (NI) Order 1996.

(iii) Whether the claim under the Working Time Regulations (NI) 1998 was in time in accordance with provisions of regulation 30 (2) thereof.

(iv) Whether the claim for breach of contract had been presented in time in accordance with article 7 of the Industrial Tribunals Extension of Jurisdiction Order (NI) 1994 and, if not, was it reasonably practicable for the complaint to be presented within the time limits laid down in article 7 (c) of the said Order.

(v) Whether the claim for unauthorised deductions of wages was presented within the time limits laid down in article 55 of the Employment Rights (NI) Order 1996.

3. The Tribunal, having analysed the evidence in relation to the issues set out above, made the following findings of fact:-

(i) The effective date of termination of the claimant's employment was the 6 September 2005 and the claims were presented to the Tribunal on the 15 March 2006.

(ii) The claimant had been suspended from his employment with the respondent's on 24 May 2003 and did not work for the respondent's after that date. The claimant attended a disciplinary hearing on 3 June 2004 to respond to allegations that he had failed to work his agreed daily contracted hours and subsequently made fraudulent claims for payment for hours not worked during the period 1 April 2002 to 16 June 2003. The respondent's disciplinary sub committee recommended that the applicant be summarily dismissed for gross misconduct. The claimant was afforded the opportunity of making representations concerning the respondent's proposed course of action to the respondent's Board of Governors. The claimant did so on 22 October 2004 and had the assistance of his trade union representative Mr Paddy Murphy. The claimant was subsequently summarily dismissed for gross misconduct and he lodged an appeal against this decision. An appeal hearing took place on 25 August 2005 and the claimant was dismissed on the 6 September 2005. He was assisted at the appeal by an unofficial trade union representative, Mrs Magill. The claimant had also sought assistance from a retired Trade union member after his dismissal on 6 September 2005. He had contacted Mr Brendan McCarthy of Unison as well as Mr Murphy again in February 2006 before visiting the Centre for the Unemployed at the beginning of March 2006.

(iii) In relation to the allegation of political discrimination, the Tribunal accepts the claimant's evidence that he first knew of such an alleged act in October 2003. His explanation for not presenting a claim to the Tribunal in relation to this matter was that he wasn't 'aware of the roads he could go down'. He also claimed that fear prevented him from presenting claims to the Tribunal but when he became unemployed and lost everything he was no longer afraid to present his claims to the Tribunal.

(iv) Correspondence relied on by the claimant subsequent to his dismissal on the 6 September 2005 indicated that there was an ongoing dispute regarding the claimant's claim for 60 days annual leave taken prior to the termination of his employment. Correspondence from Jill Dowie, Assistant Human Resources Manager to the respondent dated 31 October 2005 refers to a recent invoice issued to the claimant regarding a substantial overpayment arising from alleged fraudulent claims by the claimant for hours not worked and requests his agreement for the amount due for 60 days annual leave to be deducted from the balance of the overpayment. The respective parties engaged in further correspondence regarding this issue and there was evidence before the Tribunal of telephone calls having been made. The claimant last spoke to Jill Dowie at the end of January/beginning of February 2006. He told her on the 6 of February 2006 that he was going to the Centre for the Unemployed. He did this in or about the beginning of March 2006. The claimant was alleging unauthorised deduction from wages and breach of contract in relation to the 60 days annual leave allegedly due to him. The Tribunal also found that any claim under the Working Time Regulations could not relate to a period after the claimant's suspension on the 24 of May 2003.

4. The law in relation to the issues is as set out at (2) above.
5. Having applied the relevant principles of law to the facts the Tribunal concludes as follows:-

(i) In relation to the allegation of political discrimination the claim is out of time under article 46 of the Fair Employment and Treatment (NI) Order 1998 and it is not just and equitable in all the circumstances of the case to consider this claim despite the fact that it is out of time.

(ii) In relation to the claim for unfair dismissal, the Tribunal concludes that same is out of time and that it was reasonably practicable in the sense of being reasonably feasible for the claimant to have presented his claim to the Industrial Tribunal within 3 months from the 6 September 2005.

(iii) In relation to the claim under the Working Time Regulations, the Tribunal concludes that same is out of time under regulation 30 (2) of the Regulations and that it was reasonably practicable for the claimant to have presented such a claim to the Tribunal within the period of 3 months specified therein.

(iv) It was reasonably practicable for the claimant to have presented his claims alleging unauthorised deduction from wages and breach of contract within 3 months from the 6 of September 2005.

(v) The claims to the Fair Employment Tribunal and the Industrial Tribunal are therefore dismissed.

Chairman:

Date and place of hearing: 1 September 2006, Belfast.

Date decision recorded in register and issued to parties: