Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2004/1657_03.html
Cite as: [2004] NIIT 1657_03, [2004] NIIT 1657_3

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INDUSTRIAL TRIBUNALS

CASE REF: 01657/03

APPLICANT: Janice Mills

RESPONDENT: Boots the Chemists Limited

DECISION

The unanimous decision of the tribunal is that the applicant's complaint was not presented within the time prescribed by Article 145 of the Employment Rights (NI) Order 1996, and is hereby dismissed.

Appearances:

The applicant did not appear and was not represented.

The respondent was represented by Ms J English, Solicitors of the Respondent's Legal Services Department.

The Preliminary Issue Before the Tribunal

"Whether the tribunal has jurisdiction to entertain the applicant's claim in view of the provisions of Article 145 of the Employment Rights (NI) Order 1996 regarding the time limit for presenting her claim".

The Tribunal Found the Following Facts

By her originating application, dated 10 June 2003 (sic.) and presented on 12 June 2003, the applicant complained that on 3 March 2003 she had been "sacked with no evidence of accused reason" The applicant had been employed from 5 November 2001 until 3 March 2003 at the respondent's Belfast store at 35-47 Donegal Place. The originating application is signed by the applicant and dated 10 June 2003. By a letter dated 11 June 2003, which was appended to the originating application, the applicant stated:-

"I understand that I have only 3 months to apply against unfair dismissal, and I am slightly out of time but at the time this happened my mother and father broke up. This was a very hard time for me, I had to help my mother through a very bad time. Family were brought into this which made it a lot more difficult and impossible to get time to apply. I did request this form on 5/6/03 and I only received it today (11/6/03). Please consider me for the Tribunal as I feel very strongly about what happened to me".

By its Notice of Appearance, presented on 11 July 2003, the respondent denied the allegation of unfair dismissal.

The applicant was given written reasons for dismissal by Michelle Hunter (Store Manager) at the Donegal Place, Belfast, outlet. This letter clearly states the applicant's effective date of termination of employment to be 3 March 2003. The applicant, therefore, had until 3 June 2003 to present her complaint to the industrial tribunal. The complaint was presented on 12 June 2003, and is therefore nine days out of time.

Notice of today's hearing was sent to both parties on 15 December 2003. The tribunal attempted to make contact with the applicant this morning on the telephone number indicated on the originating application, but there was no reply. Ms English advised the tribunal that the Labour Relations Agency's Conciliation Officer assigned to this complaint had informed her that the applicant had advised the LRA that she did not intend to appear before the industrial tribunal today. The tribunal received no such communication from the applicant herself.

Having heard evidence from Ms Michelle Hunter (Store Manager) the tribunal finds that she and the applicant had been close friends, and that the applicant had confided in Ms Hunter that her parents had separated before 5 November 2001, and that there was renewed marital discord between the applicant's parents in January 2003. Moreover, immediately after 3 March 2003, the applicant sent a message to Ms Hunter via a mutual friend (Ms Joanne Whitla) to advise that she had found immediate re-employment with a call centre at a substantial pay increase, and that the applicant was thoroughly enjoying this new employment.

THE DECISION OF THE TRIBUNAL

The tribunal has considered the originating application, Notice of Appearance, the applicant's letter of 11 June 2003, all evidence before it, and the respondent's submissions, and makes the following Decision on foot of the Findings of Fact above.

By a unanimous Decision, the tribunal makes the following decision:

A. Despite the assertions in the applicant's letter of 11 June 2003 that it was not reasonably practicable for her to have presented her complaint to the industrial tribunal by 3 June 2003, there is an inherent contradiction in her letter. It states "I did request this form on 5/6/03 and I only received it today (11/6/03)", yet it is signed on 10 June 2003. Moreover, the assertion that the applicant was preoccupied by her parents' marital break-up is contradicted by the direct evidence from Ms Hunter that this separation significantly pre-dated 3 March 2003, and in fact went as far back as November 2001. Moreover, we determine the fact that the applicant was happily re-employed almost immediately would gainsay her written assertions in the letter of 11 June 2003. Balancing these competing assertions, the tribunal unhesitatingly prefers the direct evidence before it that the applicant was not suddenly totally preoccupied with family affairs in the period between 3 March and 3 June 2003.

B. Pursuant to Article 145(2)(b) of the Employment Rights (NI) Order 1996, the tribunal therefore determines that it was reasonably practicable for the applicant to present her complaint in the period 3 March 2003 to 3 June 2003.

C. Accordingly, the tribunal determines the applicant's complaint is out of time.

D. Hence, tribunal thus dismisses the applicant's complaint in its entirety.

E. No further or other Order is made.

Chairman:

Date and place of hearing: 5 March 2004, Belfast.

Date decision recorded in register and issued to parties: