Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 33/06FET

CLAIMANT: Simon Walker

RESPONDENTS: 1. Romec

2. Tom Campbell

3. Frank Keenan

4. Ken Shiels

5. Louise Fairhurst

DECISION ON A PRE-HEARING REVIEW

Both preliminary issues are answered in the negative and the Tribunal dismisses the claimant's claim for discrimination on the ground of political opinion.

Constitution of the Tribunal

Chairman: Mr B Greene (sitting alone)

Appearances:

The claimant appeared in person.

The respondents were represented by Mr R Murphy of Engineering Employers' Federation of Northern Ireland.

Sources of Evidence

1. The Tribunal heard evidence from the claimant and his witness Malachy McGuiggan. The respondents did not adduce any oral evidence. The Tribunal was given 2 bundles of documents by the claimant comprising 5 letters from the Equality Commission to the claimant of 18/11/05 (2 letters), 14/3/06, 20/3/06, 21/3/06, and 7/4/06; 3 typed diary entries from Malachy McGuiggan's diary of 8/7/05, 21/705, and 27/10/05; and 1 bundle from the respondent. The bundles totalled 50 pages.

The Claim and Defence

2. The claimant claimed discrimination on the basis of political opinion. The respondents denied that the claimant had suffered discrimination on the grounds of political opinion. They further asserted that the claimant's claim was outside the requisite time limits.

The Issues

3. This matter was listed to deal with the following issues;-

(a) Was the claim presented within the extended time limit.

(b) 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?

Findings of Fact

4. (a) The first respondent employed the claimant as a cleaner from 9

October 2000 to 27 June 2005.

(b) On 12 May 2005 the claimant alleges that the second respondent threatened him. The claimant identifies this date as the date of the alleged discrimination.

(c) The second respondent alleges that on 12 May 2005 the claimant threatened him. He complained to his employer, the first respondent, who initiated a disciplinary process against the claimant.

(d) Following a disciplinary hearing and an appeal the first respondent dismissed the claimant effective from 27 June 2005.

(e) With the aid of union officials the claimant completed an originating application for a claim of unfair dismissal to an industrial tribunal. The form is dated 19 July 2005 but it was never served on the Office of Industrial Tribunals and the Fair Employment Tribunal (OITFET). The application does not mention discrimination and answers in the negative question 15 of the application which asks if there is an allegation of discrimination on the grounds of religious belief or political opinion. The claimant explained that in answering question 15 in that manner he had ticked the wrong box.

(f) The originating application was retained by Eoin Davy, a CWU representative, for further consideration and discussion with other union officials in England on 21 July 2005.

(g) The claimant attempted unsuccessfully to make contact with Eoin Davy until late September 2005 when the latter advised him that the claimant had completed the wrong form and that it was now too late for the claim i.e. outside the statutory 3 month period.

(h) The claimant in September or October 2005 contacted Malachy McGuiggan another union official who advised the claimant to contact the Equality Commission.

(i) By letters of 18 November 2005 the Equality Commission provided to the claimant a number of documents and information about making a claim to the Fair Employment Tribunal (FET) including a blank application form and time limits for making a claim.

(j) In early March 2006 the claimant sent to the Equality Commission the originating application dated 19 July 2005 which was returned to him with advice that he should send it to OITFET and seeking copies of his application to the FET, the Notice of Appearance and the respondents' Replies to the Statutory Questionnaire.

(k) The claimant completed his claim to the FET on 15 February 2006 and lodged it on 13 March 2006. The claimant explained that he did not lodge his claim earlier because he was seeking information and witness statements from November 2005.

(l) The claimant relies on the grief reaction to the death of his father and brother some months before he was sacked; collecting information and witness statements; his ignorance of the procedure; and his failure to progress the matter more quickly to explain the delays in submitting his application.

The Law

5. (a) A Tribunal cannot consider a complaint of discrimination on the ground

of political opinion unless it is brought within 6 months of the date on which the complainant had knowledge of or might reasonably have expected to have had knowledge of the act complained of (Article 46(1)(a) The Fair Employment and Treatment (Northern Ireland) Order 1998 as amended by Regulation 15(1) Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004).

(b) Where a complaint is late the Tribunal may consider the

complaint, in all the circumstances of the case if it is just and

equitable to do so (Article 46(5) The Fair Employment and Treatment (Northern Ireland) Order 1998).

Application of the Law and Findings of Fact to the Issues

6. (a) In his claim the claimant alleges the discrimination happened on

12 May 2005.

(b) The claimant's claim is dated 13 March 2006, over 4 months

outside the requisite 6 months for bringing a claim.

(c) The claimant's claim was not brought within the specified time

limit and therefore the first preliminary issue is answered in the

negative.

(d) The onus is on the claimant to persuade the Tribunal that it is just

and equitable to exercise its discretion to extend the time for making a claim.

(e) The claimant failed to discharge that onus on him. Among the

factors taken into account by the Tribunal were;-

(i) The delay in processing this application from 19 July 2005 until early October 2005 was caused by the claimant's trade union representative Eoin Davey and this delay cannot be attributed to the claimant.

(ii) The extended statutory time limit expired on 11 November 2005.

(iii) The claimant was advised by another trade union representative Malachy McGuiggan in late September or early October 2005 to contact the Equality Commission. However he did not make contact with the Equality Commission until 18 November 2005.

(iv) The claimant did not advance any specific reason for this delay beyond the general reasons he advanced set out at 4(l) above.

(v) The claimant was provided with a blank claim form to make a claim to the FET by the Equality Commission which he received on 19 or 20 November 2005.

(vi) The claimant did not complete the Claim until 15 February 2006 and did not lodge it until 13 March 2006.

(vii) The claimant did not advance any specific reason for the delay in completing the claim between 20 November 2005 and 15 February 2006 nor for the delay between completing the form on 15 February 2006 and lodging it on 13 March 2006 apart from the general reasons set out at 4(l) above.

(viii) The Tribunal accepts that grief can cause people not to act as they should. However the claimant did not adduce any evidence to show how this grief reaction prevented him from completing the claim form, given that he was able to take a number of steps to advance his claim including completing an originating application by 19 July 2005.

(ix) The Tribunal is conscious that the claimant has carried the responsibility of progressing his case personally and may have been ignorant of procedure and time limits. However he had the good advice from Malachy McGuiggan in late September or early October 2005 and the helpful and prompt advice of the Equality Commission which specifically drew to the claimant's attention the issue of time limits for lodging a claim. He had received this advice by the 20 November 2005.

(x) In the light of the information disclosed on the claimant's claim it is difficult to understand why this information could not have been written on his claim form within a couple of days of 20 November 2005 as there is not any information on his claim to the FET that does not appear on the originating application completed by 19 July 2005.

(f) The claimant failed to act with promptness in processing his claim

or in the steps taken by him to obtain professional advice.

(g) The Tribunal accepts that the cogency of evidence has been affected. The respondents were not made aware of the discrimination claim until 30 March 2006 10½ months after the alleged discrimination.

(h) By reason of the delay the Tribunal believes that the prejudice to

the respondents is considerable in meeting this claim.

(i) The Tribunal does not consider it just and equitable in all the

circumstances to consider this claim despite the fact that it is out of time.

(j) The second preliminary issue is also answered in the negative.

(k) Therefore the Tribunal does not have jurisdiction to consider this

claim for discrimination on the ground of political opinion and

accordingly it is dismissed.

Chairman:

Date and place of hearing: 25 August and 6 October 2006, Belfast.

Date decision recorded and issued to parties: