Industrial Tribunals Northern Ireland Decisions

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Cite as: [2002] NIIT 1038_2, [2002] NIIT 1038_02

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1038/02

APPLICANT: Kelly Quinn

RESPONDENT: Royal Mail

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the Tribunal is that the applicant's complaint is dismissed because it fails to comply with the time limit specified in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 (the 'Order').

Appearances:

The applicant in person.

The respondent was represented by Mr J Dunlop, Barrister-at-Law, instructed by Mr John Gordon, Solicitor.

These reasons are given in an extended form.

Context

In an Originating Application which was presented on 26 April 2002, the applicant, Miss Kelly Quinn, made a complaint of sex discrimination and victimisation against the respondent. In substance, a complaint arose out of the fact that she had been dismissed by the respondent on 18 May 2001; she asserted that this dismissal constituted unlawful sex discrimination, contrary to the Order.

The issues

This is the decision of the tribunal in relation to the following preliminary issues:-

'(1) Was the application presented within the specified time limit.

(2) If not, is it just and equitable, in all the circumstances of the case, for an Industrial Tribunal to consider this complaint despite the fact that it is out of time".

Article 76 of the Order, so far as material, is in the following terms:-

'(1) An Industrial Tribunal should not consider a complaint …unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done' …

(5) A court or tribunal may nevertheless consider any such complaints … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so' …

Against that background, and in view of the fact that the proceedings were not presented to nearly a year after the date of dismissal, the applicant accepted, and the tribunal concludes, that she did not meet the primary time limit set out in Paragraph (1) of the Article 76 of the Order.

Accordingly, it is agreed between the parties, and the tribunal accepts, the only live issue is whether or not it is just and equitable for an Industrial Tribunal to consider this complaint despite the fact that the primary time limit (as set out in Article 76(1) had not been met).

The facts

On behalf of the applicant, we received oral testimony from the applicant and from her mother, Mrs Rose Ann Quinn. On behalf of the respondent, we received oral testimony from Mr Gerald Taggart, the Acting Mail Centre Manager of the Mallusk Mail Centre. We were also shown correspondence which had passed between the applicant and the respondent. In the light of the evidence which we have seen and heard, we make the following findings of fact:-

(1) In her evidence to this tribunal, the applicant asserted that she brought her proceedings because Mr Gerald Taggart had spoken to the applicant's mother and had told Mrs Quinn that she should tell the applicant to take a case against the respondent. However, we are satisfied this version is inaccurate.

(2) In her oral testimony, the applicant has not accurately informed us as to the real trigger for her decision, in April 2002, to take proceedings against the respondent.

(3) In a letter dated 25 November 2002, the applicant told the respondent's Solicitor that she decided to take proceedings because she had contacted the Equal Opportunities Commission and they had told to 'forward my case to the Tribunal'.

(4) In June 2001, correspondence from the respondent made it clear to the applicant that the respondent continued to be satisfied that the applicant's dismissal was fair and was fully justified.

(5) As early as May 2001, the applicant had consulted a firm of Solicitors to advise her in relation to her rights in connection with her dismissal.

(6) In April 2002, the applicant's mother, Mrs Rose Ann Quinn, met Mr Gerald Taggart in the canteen in Mallusk. She asked him to enquire as to the position regarding her daughter's prospects for re-employment by the respondent in the future. As a result, he made enquiries from the respondent's Resourcing Department. As a result of those enquiries, he was told by Mr Pat Latimer the Resourcing & Development Manager of the respondent, that, because the applicant had been sacked, she was not re-employable. He informed Mrs Quinn accordingly.

(7) When Mr Taggart was informing Mrs Quinn of the outcome of his enquiries with Mr Latimer she got the impression that he was encouraging her to urge the applicant to begin proceedings against the respondent. However, in that regard Mrs Quinn was mistaken. We are satisfied that Mr Taggart did not, either by word or by action, or by accommodation of both, act in such a manner as to provide anybody with reasonable grounds for believing that he was encouraging anybody to take action against the respondent. Nevertheless, we regard Mrs Quinn as an honest witness.

The submissions

The submissions of the parties can be summarised as follows:-

(1) The applicant mainly based her case on general considerations of fairness. She also based her case on the assertion that Mr Taggart had encouraged her, during the relevant exchange of views with her mother, to commence proceedings against the respondent.

(2) For the respondent, Mr Dunlop pointed out that it was up to the applicant to show that the tribunal should extend the time limit. There were a number of important points which indicated that the time limit should not be extended. By the time the applicant took proceedings, nearly a year had expired since the date of her dismissal. She had been guilty of inordinate delay, which was inexcusable. She had contacted her Solicitors and (presumably) obtained good advice at an early stage. In June 2001, the respondent had informed the applicant in writing, clearly, of the reasons for her dismissal.

The law

As is pointed out in Harvey on Industrial Relations and Employment Law (at Division T, Paragraph 279), the discretion to grant an extension of time under the 'just and equitable' formula is a wide discretion. In that context, a tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, including the length and reasons for the delay, the extent to which the of the evidence is likely to be affected by the delay, the extent to which the parties sued had co-operated with any requests for information, the promptness with which the applicant acted once she knew of the facts giving to the rise to the cause of action and the steps taken by the applicant to obtain appropriate professional advice once she knew of the possibility of taking action.

Conclusions

We have paid careful regard to the points mentioned at Paragraph 10. above. We note that, as an early stage, soon after her dismissal, the applicant obtained advice from Solicitors. We note that there has been a very lengthy delay in taking proceedings. In all the circumstances of this case, and having had due regard to our findings of fact (as set out above), we are satisfied that it is not just and equitable to grant an extension of time in this case.

Chairman:

Date and place of hearing: 12 December 2002, Belfast

Date decision recorded in register and issued to parties: