Industrial Tribunals Northern Ireland Decisions

 


Shaw v Reilly & Anor (Jurisdiction) [2002] NIIT 2301_01 (31 January 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 2301/01

APPLICANT: Keith Shaw

RESPONDENTS: 1. Christine Reilly

2. The Gold Card Health & Fitness Studio Limited

DECISION

The unanimous decision of the tribunal is that the application be dismissed.

Appearances:

The applicant appeared in person.

There was no appearance for either first or second respondent.

Summary Reasons

1. According to the applicant's evidence, which the tribunal accepted, in preference to the brief and inconclusive statements on the second respondent's Notice of Appearance, he had been employed for a period in excess of three years by the second respondent when, on the night of Sunday 29^th May 2000, he received two letters which made clear that his contract had been terminated with immediate effect. The stated reason for such termination suggested financial problems on the part of the second respondent.
2. The applicant raised the issue of his outstanding wages, his holiday pay and redundancy with the respondent and was told that it would all be paid but it never was. He continued to telephone her until she refused to take any more phone calls from him. At no time did he write seeking any redundancy payment. Nor did he seek any advice as to his position, even when, after the first respondent had refused to take any more telephone calls from him, it must have been apparent that no payment was going to be made. The applicant approached the Department of Health & Social Services without any success and subsequently approached the Department of Higher & Further Education Training & Employment. The last Department rejected his application for a redundancy payment on 13^th March 2001. The applicant still took no advice and eventually, on 4^th June 2001, he brought an application to the tribunal.
3. There were, in effect, two matters before the tribunal. The first was whether the applicant had any right to a redundancy payment. Accordingly to Article 199 of the Employment Rights (NI) Order 1996 an employee does not have any rights to a redundancy payment unless, before the end of the period of six months beginning with the relevant date either

(a) the payment has been agreed and paid;

(b) the employee has made a claim for the payment by notice in writing given to the employer;

(c) a question as to the employee's right to, or the amount of, the payment has been referred to an industrial tribunal; or

(d) a complaint relating to his dismissal has been presented by the employee under Article 145.

As the applicant's evidence was that no payment had been made and that he had made no written claim, and as the only application to the tribunal had been made on 4^th June 2001, over one year after the relevant date which was the date on which his dismissal took effect, it appeared that the applicant had no right to a redundancy payment unless he fell within the saving provisions contained in Article 199(2).

4. Where an employee, within a further period of six months makes a claim for the payment by notice in writing given to the employer or refers the question of his redundancy or unfair dismissal to the tribunal, and if it appears to the tribunal to be just and equitable, then an employee will not be deprived of his right. However, in this case no such claim or referral was made within the period of six months. The application to the tribunal was made just over six months afterwards.
5. No further discretion is available to the tribunal nor any provision made for further extension of the period. Accordingly the tribunal finds that the claimant has not established his right to a redundancy payment and that his application for such payment must be dismissed.
6. The other question for the tribunal was whether the applicant was entitled to bring a claim for unpaid wages, holiday pay, notice pay and other contractually based rights. The period prescribed for bringing such a claim before a tribunal is three months, a requirement which the applicant had clearly failed to meet. The tribunal has a discretion to extend the time for presentation if the applicant can show that it was not reasonably practicable for the complaint to be presented before the end of the period of three months and, if so, that the application is brought within a reasonable time thereafter.
7. The applicant was clearly aware that he had rights. As he said in his Originating Application he asked when he would receive his wages, redundancy, holiday pay and month in lieu. According to his evidence given at the hearing he made frequent phone calls with a view to obtaining such payments. The applicant stated also that he was unaware that an application could be made to any tribunal or of the time limits for doing so. The applicant was, however, aware that he had some rights as, indeed, could be expected, given the widespread public knowledge of such matters. It would, in the tribunal's view be reasonable to expect that the applicant would have realised that there might well be time limits involved and should have sought advice. He did not do so even when it became apparent that no payment was going to be forthcoming from the respondent. Advice on such matters is readily available from such as the Labour Relations Agency, the Law Centre or from community advice centres as well as from solicitors. Even when the applicant's application to the Department of Higher & Further Education, Training & Employment for a redundancy payment was refused the applicant sought no advice but delayed making any application to the tribunal for a period of almost three months making a total period of over one year from the date of his dismissal. In these circumstances, even if the tribunal were satisfied that it was not reasonably practicable for the complaints to have been presented before the end of the period of three months, it is not satisfied that the further time within which the complaint was brought was reasonable. Enquiries should have been made. The longer the time that passed the more necessary those enquiries became. The clearer it became that payment was not going to be made from any quarter the more urgent was the action required. The tribunal does not accept, that in the circumstances outlined, an application over a year after the date of dismissal can properly be entertained.

____________________________________

Date and place of hearing: 18 December 2001, Belfast

Date decision recorded in register and issued to parties: 31 January 2002