Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1109/03

APPLICANT: John O'Hare

RESPONDENT: Intouch Network Solutions

DECISION

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

Appearances:

The applicant did not attend and was not represented.

The respondent was represented by Mr Flynn of Carson McDowell Solicitors.

1. The applicant submitted an Originating Application to the tribunal on 27 September 2002 which was registered as a claim for unlawful deduction of wages. The applicant was dismissed by the respondent by reason of redundancy by letter dated 14 October 2002 and on 26 February 2003 the applicant wrote to the tribunal withdrawing his original application and asking for it to be registered as a claim for unfair dismissal to which the respondent entered a Notice of Appearance on 19 May 2003.
2. The case came before the tribunal to consider the following preliminary issues:-

(i) "Whether the applicant's Originating Application is capable of amendment".

(ii) "Whether the tribunal has 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".

3. The tribunal considered the case in the absence of the applicant and before reaching our conclusions took into account the contents of his Originating Application and the subsequent letter of 26 February 2003. The first question to be determined was whether the Originating Application lodged on 27 September 2003 could be amended to include a claim of unfair dismissal. The tribunal considered the contents of the first Originating Application and found that it related to the alleged unlawful deduction of wages made while the applicant was still employed by the respondent and was lodged before his redundancy. The tribunal therefore found that there was no causal link between the application and his subsequent claim for unfair dismissal. On this basis that Originating Application could not be amended to include a claim of unfair dismissal. The tribunal also did not accept that there was jurisdiction to consider what amounted to a premature application. The application of 27 September 2002 clearly related to the events which pertained at that time only.
4. The second question addressed by the tribunal was whether the letter of 26 February 2003 asking for a claim of unfair dismissal to be considered was submitted within the relevant time limits. Without taking into account the question of whether this amounted to a valid application, the tribunal considered the question of the time limits for presenting the claim as set out in Article 145 of the Employment Rights Order. The dismissal took place on 14 October 2002 and the letter was not received until 26 February 2003 so it was not presented within the three month period and was therefore outside the relevant time limit. The applicant did not attend to give evidence to show that it was not reasonably practicable for the application to be presented within the time limit. No reason for the delay in presenting the application was apparent from the correspondence before the tribunal. Therefore, in the absence of any evidence from the applicant relating to any impediment to his submitting his application within the relevant time limit, the application in respect of the unfair dismissal was dismissed by the tribunal.

In conclusion therefore the tribunal did not consider that the application of 27 September 2002 was capable of amendment to include the claim of unfair dismissal and the application received on 26 February 2003 was received outside the relevant time limits and was not capable of being admitted for hearing.

Chairman:

Date and place of hearing: 13 September 2004, Belfast.

Date decision recorded in register and issued to parties: