Industrial Tribunals Northern Ireland Decisions

 


Thompson v Nortel Networks (Application of Time) [2002] NIIT 927_02 (13 December 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 927/02

APPLICANT: Barry Thompson

RESPONDENT: Nortel Networks

DECISION

The unanimous decision of the Tribunal is that tribunal does not have 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 his claim. The complaint is dismissed by the tribunal, without further order.

Appearances:

The applicant was represented by Mr J Nicholl of MSF Union.

The respondent was represented by Mr P Bloch of Engineering Employers Federation.

This is a reserved decision in summary form.

THE ISSUES

1. The matter was listed for a preliminary hearing upon the issue as to whether the tribunal 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 his claim. The history of the presentation of the applicant's complaint to this tribunal was somewhat unusual and that history is referred to further below. The applicant's complaint was of unfair dismissal. Accordingly, the tribunal had to determine the preliminary issue in respect of that complaint.

THE TRIBUNAL'S FINDINGS

In consequence of the written and oral evidence adduced before it, the tribunal found the following facts:-

2. The applicant was employed as a Technician by the respondent. The applicant was dismissed from that post by the respondent, the stated reason for dismissal being redundancy. The effective date of termination of the contract of employment was 8 August 2001.
3. The applicant contended that on 21 October 2001 he had submitted to the Office of the Industrial Tribunals and the Fair Employment Tribunal (the 'Office') an Originating Application concerning his complaint of unfair dismissal. There was no record in the Office of that Application having been received. The applicant stated to the tribunal that he had telephoned the Office in mid-December 2001 in order to check upon the progress of his Application and he spoke with an unidentified person and he further contended that he was advised by that person to wait until January 2002 whilst a search was carried out for the Application which Application it was stated could not be located at that time in the Office. There was no record of that telephone call having been received in the Office. The applicant further contended that he again contacted the Office in or around 12 January 2002 and was informed, again by an unidentified person, that there was no record of his Application in the Office
4. The applicant stated that he then prepared a further form of Originating Application which he dated 2 February 2002 and he dispatched this by post in an envelope addressed to 'the Secretary, Office of Industrial Tribunals, Long Bridge House, 20-24 Waring Street, BT1 2EB'. The tribunal had the benefit of having sight of the envelope which purported to contain that Application. That envelope and the document purported to be contained therein does not appear to have been received promptly by the Office and appears to have gone astray in the post. The best possible explanation which presents itself to the tribunal is that the omission of the word 'Belfast' in the address might have caused the envelope to be misdirected by the postal service to, perhaps Birmingham or Nottingham. The applicant stated that he then contacted the Office some days after this to enquire if that application had been received. The applicant was unsure of the date upon which he stated he did this but he contended that it was no later than 24 February 2002. He stated that he was informed that the Application had not been safely received by the Office.
5. Then the applicant decided personally to call into the Office in order to discuss the position and to complete a further Originating Application. This he did on 15 April 2002. That Application was duly completed in the Office and it was received on that date and was accorded Case Reference Number 927/02 by the Office. It is that Originating Application which was before the tribunal.
6. The tribunal noted the oral evidence of the applicant concerning various dates and periods of time in connection with the foregoing.

THE TRIBUNAL'S DECISION

7. Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 provides that a complaint under that Article shall not be considered by a tribunal unless it is presented within three months of the effective date of termination of the employment contract or within such further period of time as the tribunal considers reasonable in a case where the tribunal is satisfied that it was not reasonably practicable for the complaint to have been presented before the end of the statutory period of three months.
8. In this case, having considered all of the evidence before it, the tribunal does not accept that the applicant submitted to the tribunal a valid Originating Application in or around 21 October 2001. The tribunal notes that the effective date of termination of the employment contract was 8 August 2001. The statutory period of three months would have expired on 8 November 2001. Any Application received after that date would have been out of time. The tribunal is therefore required to consider the facts insofar as they bear upon the issue of whether or not it was reasonably practicable for the applicant to have presented his complaint to the tribunal within time and, if the tribunal finds that it was not reasonably practicable, whether any complaint or complaints were presented within such further time as the tribunal would consider to be reasonable.
9. The tribunal thinks that it is quite possible that the applicant did indeed endeavour to present a complaint by post to the tribunal in or around 2 February 2002. The tribunal is unable to decipher the date of posting from the envelope which it has seen but takes the view, on balance, that this application was posted by the applicant in or around that time. However, there is no corroborative evidence in respect of the conversation which the applicant states he had with the Office in mid-December 2001. If the tribunal is to take the applicant's evidence at its best, he did have some conversation with some (unidentified) person in the Office in mid-December, but nonetheless he delayed presenting an Application until 2 February 2002, at which point his Application was close to three months out of time. The applicant was unable to give any satisfactory explanation as to the reason for this delay.
10. The applicant then appears to have contacted the Office of Tribunals at some stage no later than 24 February 2002 in order to ascertain if his (February) Application had been received and was apparently advised that there was no record of its receipt in the Office. The applicant then appears to have further delayed from no later than 24 February 2002 until 15 April 2002, upon which date he completed and submitted the Application which Application is now before this tribunal. Again, the applicant has provided no proper explanation for his delay in attending to this.
11. Looking at all of this, the tribunal has no difficulty in reaching a conclusion, based upon the view that it takes of the primary responsibility which is before any applicant to ensure that his or her Originating Application is properly presented in a timely fashion and is safely received by the Office of the Industrial Tribunals and the Fair Employment Tribunal, in concluding that it was in this case reasonably practicable for the applicant to have presented his complaint to the tribunal within the statutory period of time referred to above. There was, in the tribunal's view, no disability or intervening cause preventing the applicant from doing so, yet he failed to present his application. That being the case, the tribunal does not need to consider the alternative statutory provision.
12. Accordingly, the applicant's complaint is out of time, and the unanimous decision of the Tribunal is that tribunal does not have 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 his claim. The complaint is dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing: 13 December 2002, Belfast

Date decision recorded in register and issued to parties: