Industrial Tribunals Northern Ireland Decisions

 


Clark v Police Rehabilitation & Retraining Trust (Time Limit) [2002] NIIT 262_02 (12 December 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 262/02

APPLICANT: Elizabeth Clark

RESPONDENT: Police Rehabilitation & Retraining Trust

DECISION OF THE TRIBUNAL ON THE PRELIMINARY ISSUE

The Tribunal were of the unanimous opinion that the effective date of termination was 19 October 2001. The Originating Application dated 14 January 2002 had been received in the Tribunal Office on 23 January 2002 outside the prescribed time limits. However the tribunal, under the provisions of Article 145(2)(b), were satisfied that it was not reasonably practical for the complaint to have been presented before the end of the period of three months. The application should proceed to a full hearing for determination of the issues.

Appearances:

The applicant was represented by Ms L Moran, Barrister-at-Law, instructed by John J McNally & Co, Solicitors.

The respondent was represented by Mr N Durkin.

1. The issue before the tribunal was 'whether it had jurisdiction to entertain the applicant's claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting the claim'.
2. The Originating Application stated in Paragraph 8 that the employment terminated on 25 September 2001, notwithstanding that Paragraph 13 contained a statement that 'her employment had been terminated on 19 October 2001'.
3. Ms Moran made an application for an adjournment. She had requested the applicant's Solicitor to lodge an affidavit with the tribunal and she had only become aware that it had not been lodged. Her Instructing Solicitor was not in attendance and she submitted that she would be unable to proceed as in her opinion the affidavit was crucial to the hearing of the application.

The tribunal noted that the notice of the date of hearing sent to the parties was dated 27 September 2002, therefore it did not consider that an application for an adjournment at this late stage on the grounds cited by Ms Moran should be granted. Her application was therefore refused.

4. The tribunal were of the opinion that it would be necessary to determine what was the effective date of termination of the employment contract so that it then could decide whether it had jurisdiction to hear the application.
5. The applicant was suspended from her employment on 25 September 2001 and a disciplinary hearing was arranged for 5 October 2001. The applicant sought details of the allegations made against her and the date of the hearing was re-arranged for 12 October 2001. The applicant attended this hearing but had not been provided with details of the allegations against her and the hearing was adjourned. There were discussions under the auspices of the Labour Relations Agency but an agreement satisfactory to the applicant could not be reached. A document was produced by the respondent which purported to be an agreement with the applicant. This document was not signed by the applicant but was signed by Mr Struteley of the respondent's. This document contained the statement that the contract of employment had been terminated on 19 October 2001. There was additional correspondence from the respondent recording that the date of termination of employment was 19 October 2001. The tribunal were satisfied that all the evidence before the tribunal showed that the effective date of termination was 19 October 2001.
6. Mr Durkin made submissions on the out of time issue. The application had been dated 14 January 2002. Mr Durkin drew the tribunal's attention to the difficulties which arose at that time in connection with the postal services. Following the shooting of a postal worker, all postal staff stopped work and deliveries were halted as and from Monday 14 January. Mr Durkin provided the tribunal with extracts from various newspapers which indicated that there would be a 24-hour stoppage and this would be followed on the Friday by a half-day strike to enable a mass rally to take place. Mr Durkin submitted that in these circumstances it was behoven of the applicant and her advisers to make enquiries as to whether letters posted at that time had or would be expected to arrive on time. He contended that if proper enquires had been made it would have been possible for the applicant and her advisers to have faxed the application to the Industrial Tribunal Office.

Mr Durkin drew the tribunal's attention to the following cases in support of his contention that the application was out of time and that it had been reasonably practical to have presented it within the period of three months:-

Capital Foods v Corrigan (1993) IRLR 420

Beggs v MGM Motors Coit 1509/167

Millar v Haven Automobiles Coit 1663/107

7. Ms Moran submitted that the application posted 1^st class on 14 January would in normal circumstances be expected to be delivered on 15 or 16 January. She drew the tribunal's attention to Paragraph 268, Harvey on Industrial Relations and Employment Law, which states 'where the failure to present a complaint in time is caused by a delay in the postal service the tribunals will normally apply the escape clause and grant an extension of time'.

She drew the tribunal's attention to the recent case of Consignia PLC v Sealy (2002) IRLR 625. The Court of Appeal in that case deploring the volume of case law concerned with presentation of claims in Employment Tribunals gave general guidance on the presentation of claims by post and Ms Moran asked the tribunal to apply these guidelines in this case.

8. The tribunal accept that but for the postal stoppage and subsequent strike the letter posted on 14 January 2002 could reasonably have been expected to have been delivered on the 2^nd day after it was posted, ie 16 January 2002.

The tribunal had the advantage of seeing the original envelope which showed that it was posted on 14 January and there had been a further franking of the letter in the Post Office on 17 January and the tribunal accept that but for the stoppage on the 18^th that it was reasonable to have expected the letter to have been delivered in normal circumstances by 18 January 2002. The tribunal were therefore of the unanimous opinion that in the circumstances of this case it had not been reasonably practical for the complaint to have been presented before the end of the three month period and therefore it had jurisdiction to hear the applicant's claim.

Chairman:

Date and place of hearing: 12 December 2002, Belfast

Date decision recorded in register and issued to parties: