Industrial Tribunals Northern Ireland Decisions

 


Peacock v Wineflair (Belfast) Ltd (Procedural) [2002] NIIT 3432_01 (7 March 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 3432/01

APPLICANT: William David Peacock

RESPONDENT: Wineflair (Belfast) Limited

DECISION

The unanimous decision of the tribunal is that the applicant's various claims could have been presented within the timeframes contemplated by Article 55 and 145 of the Employment Rights (NI) Order 1996 and Article 7 of the Industrial Tribunals (Extension of Jurisdiction) Order (Northern Ireland) 1994. The tribunal is unable to find that it was not reasonably practicable for the applicant to comply with these time limits and accordingly finds that it has not jurisdiction to entertain the applicant's claims under the above recited Articles.

Appearances:

The applicant was represented by Mr C Hamill, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.

The respondent was represented by Claire Redpath, of the respondent company.

1. This decision is given in extended form due to the nature and complexity of the argument advanced.
2. This case came before the tribunal by way of a preliminary issue as follows:-

"Whether the tribunal has jurisdiction to entertain the applicant's claim in view of the provisions of Article 55 and 145 of the Employment Rights (NI) Order 1996 and Article 7 of the Industrial Tribunals (Extension of Jurisdiction) Order (Northern Ireland) 1994."

The arguments advanced on behalf of the applicant are:-

(a) that the applicant considered that he was only dismissed from the date of the appeal;

(b) that the applicant considered on foot of the respondent's procedures that he could only have possibly been dismissed at the time of the appeal.

3. Does the period of three months run from the date of dismissal or from the date of appeal?

The tribunal considered the case of Drage –v- Governors of Greenford High School [2000] IRLR 314 a decision of the Court of Appeal in reaching its decision on this element of the applicant's case. The Court of Appeal indicated that the answer to the question of whether the effective date of termination is the date of dismissal or the date when the internal appeal has been dismissed depends on whether the employee stands -

(a) dismissed with the possibility of reinstatement; or

(b) suspended with the possibility of a proposed dismissal not being confirmed and the suspension thus being ended.

Applying this authority to the case in question, the tribunal considered the terminology of the respondent's disciplinary procedures and the terminology used in the letter of dismissal. Taking the two documents together, the tribunal finds that it is clear from the documentation that the respondent's procedures provide that the applicant was dismissed with the possibility of reinstatement. It appeared that the applicant had been previously suspended from in and around 5^th July 2001, but was actually dismissed on 16^th July 2001 by a letter of that date which is appended to this decision marked 'A1'. Certainly in the applicant's evidence to the tribunal, he admitted in cross-examination that he considered himself dismissed from that date, although he hoped that an appeal would "go his way".

4. Although the tribunal accepts that there may have been some element of confusion in the applicant's mind, the tribunal finds that the applicant was aware that his employment had been terminated, and further support for this finding is found in the applicant's own letter appealing the termination which is dated 17^th July 2001, a copy of which is also appended to this decision marked 'A2'.
5. Mr Hamill on behalf of the applicant mounted an attractive argument, suggesting that the only possible date of dismissal could have been 23^rd August 2001, which was the date upon which the applicant actually had a hearing. There was confusion in the evidence from the applicant as to whether he had a hearing in respect of his suspension which occurred in or around 5^th July 2001. It certainly appeared that there was an argument that he had been dismissed on foot of an investigatory hearing rather than a full disciplinary hearing, Mr Hamill suggested that this meant that under the procedures of the respondent, this operated to shift the date of dismissal to the date upon which the applicant actually had a hearing which was 23^rd August 2001. While there may have been procedural irregularity on the part of the respondent, and the tribunal makes no finding on this fact as it had insufficient evidence before it upon which to do so, the tribunal finds that this is insufficient to operate to shift the effective date of termination of the applicant's employment with the respondent.
6. It appears that the applicant actually approached his solicitors on 2^nd October 2001 and a draft application was circulated to him and returned by him on 14^th October 2001 to his solicitors. The time within which the applicant could have lodged his claim so as to be within the three months time limit expired on 16^th October 2001. The applicant's Originating Application was received in the tribunal on 18^th October 2001. Had the tribunal been able to find that it was not reasonably practicable for the applicant to present his claim within the three month time period of the effective date of termination, it would have had no difficulty in dealing with the second limb of the requirement which is that given that it is not reasonably practicable for an applicant to present his claim, has he actually presented it within a reasonable time period.
7. For all of the foregoing reasons, the tribunal finds that it would have been reasonably practicable for the applicant to present his claim within the timeframes contemplated by the legislation, and accordingly finds that it has no jurisdiction to entertain the applicant's claims.

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Date and place of hearing: 25 January 2002, Belfast

Date decision recorded in register and issued to parties: 7 March 2002