Industrial Tribunals Northern Ireland Decisions

 


McMullen v McClelland Salter Estate Agents (Time Limit) [2002] NIIT 3152_01 (27 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 3152/01

APPLICANT: Allison McMullen

RESPONDENT: McClelland Salter Estate Agents

DECISION

The unanimous decision of the Tribunal is that the originating application was not submitted within the relevant time limit. It is not just and equitable in all the circumstances of the case to consider the complaint and the application is dismissed.

Appearances:

The applicant was represented by Mr B McKee BL, instructed by Patterson & Donnelly, Solicitors.

The respondent was represented by Mr T Caher, of Caher & Campbell, Solicitors.

1. The case came before the tribunal to consider the following preliminary issues.

"(i) was the application presented within the specified time limit.

(ii) if not, is it just and equitable, in all the circumstances of the case, for an industrial tribunal to consider the complaint despite the fact that it is out of time?"

At the outset it was accepted on behalf of the applicant that the application was presented outside the relevant time limit. The applicant was employed by the respondent on 1 October 2000 and was dismissed on 11 June 2001. Her originating application alleged that she had been discriminated against by the respondent contrary to the provisions of the Sex Discrimination (Northern Ireland) Order 1976 and this application was submitted to the tribunal on 14 September 2001.

2. The tribunal heard evidence from the applicant that she was dismissed on 11 June 2001. The applicant gave evidence that after her dismissal she was in contact with firstly the Labour Relations Agency and then the Equality Commission and that she received a detailed letter from them on 5 July 2001 advising her of the time limits for presenting her claim.

That letter stated that the applicant had instructed them that she was dismissed on 15 June 2001 which was incorrect. It referred to a "strict three month time limit" for lodgement of the application but referred to 14 September 2001 as being the final date for the submission of that application. This error occurred because of the error relating to the date of dismissal. It was argued for the applicant that while she was aware that she had been dismissed on 11 June 2001 she relied on the information obtained in the Equality Commission letter and did not present her claim until 14 September 2001 the final date referred to in that letter. The applicant was unable to give an explanation as to how the Equality Commission had the wrong date and she was aware throughout that the date of her dismissal was 11 June 2001. The respondent during cross-examination referred to correspondence from the applicant to the respondent in early August 2001, in which she referred to her dismissal date of 11 June 2001 requesting reasons for her dismissal. This correspondence was replied to on 28 August 2001, there was also further correspondence from the applicant to the respondent dated 10 September 2001, the applicant again in that letter stated that her dismissal date was 11 June 2001. The applicant gave evidence that she had instructed a solicitor to act for her by this time.

3. The tribunal considered the issues raised in the light of the available evidence. It was argued for the applicant that the delay in submitting the application was only a few days and that while the applicant was aware of her date of dismissal she made a mistake when considering the letter from the Equality Commission. It was argued that in these circumstances the discretion to extend the time limit should be exercised and the respondent had not been prejudiced by the delay in presenting the application. There was no argument that the applicant required further information before submitting her application.
4. For the respondent it was argued that the time limit should be observed in this case and discretion to extend the time limit should not be granted. It was argued that the evidence established that the applicant had been dilatory in presenting her claim and had not provided a satisfactory explanation for the delay. It was argued that she had the benefit of advice firstly from the Labour Relations Agency then from the Equality Commission and finally from her solicitor. She had written two detailed and articulate letters addressing issues regarding her dismissal and in both had referred to the date of 11 June 2001.
5. There was no dispute in this case that the application was out of time and the tribunal considered whether in all the circumstances of the case it was just and equitable to extend the time limit for presenting the claim. The tribunal took into account the fact that throughout the period the applicant was aware that she had been dismissed on 11 June 2001 she stated this clearly in correspondence of 7 August 2001 and 10 September 2001 to the respondent. The applicant was also made aware of the letter of 5 July 2001 from the Equality Commission that there was a strict three month time limit. The applicant also had the benefit of legal representation before she submitted her application. The tribunal considered these factors together with the argument presented that the letter from the Equality Commission set out an incorrect date for the expiry of the time limit for submitting the application. The tribunal found that the applicant, who stated that she had read the correspondence, would have noted the error having been aware of the time limit. We did not accept that this gave rise to a situation where the time limit should be extended. The applicant had been active throughout the three month period in correspondence with the respondent and in seeking advice and we were satisfied therefore that it was not just and equitable to extend the time limit. The applicant was unable to provide any other explanation for the delay in presenting her claim. We noted that the delay in presenting the claim was not a long one, however, it was our view that this did not excuse the applicant from the obligation to present her claim within the time limit where no satisfactory explanation for that delay is given. For these reasons the application to the tribunal is dismissed.

Chairman:

Date and place of hearing: 27 May 2002, Belfast

Date decision recorded in register and issued to parties: