Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2004/169_04.html
Cite as: [2004] NIIT 169_04, [2004] NIIT 169_4

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THE INDUSTRIAL TRIBUNALS

CASE REF: 169/04

APPLICANT: Margaret Hickinson

RESPONDENT: Riada Recruitment

DECISION

The unanimous decision of the tribunal is that the applicant's claims for unlawful deduction of wages, breach of contract and employment particulars are dismissed because the tribunal has no jurisdiction to entertain those complaints. The complaints having been presented to the tribunal outside a period of three months beginning with the effective date of termination of employment. The tribunal is satisfied that it was reasonably practicable for the complaints to be presented before the end of that period of three months.

Appearances:

The applicant appeared in person.

The respondent was represented by Mr Keery, Barrister-at-Law, instructed by Messrs Rafferty & Boyle, Solicitors.

Reasons

These reasons are given in summary form.

Facts

.1 The applicant was employed by the respondent, a recruitment agency, from the end of May 2003 until 1 September 2003. The applicant could not remember her exact starting date.

.2 The applicant was working at the Bushmills Distillery on a rota system. On Monday 1 September 2003 her name was placed on the rota at Bushmills for the following week but later that evening Francis Lundy of the respondent company telephoned to her on her mobile and said that the respondent had decided that the applicant was finished at Bushmills and should not return to work there.

.3 As a result of this call the applicant went to the Citizens Advice Bureau during the first week of September. The Bureau informed her that she had a good case on various grounds against the respondent and suggested that she should get an application form to lodge in the Industrial Tribunal.

.4 The applicant got the form and completed it and dated it 30 November 2003. However she failed to post it immediately and the result was that it was only received by the Tribunal Office on 7 January 2004.

.5 In the meantime the applicant had on 2 October 2003 written to the respondent asking a series of questions and stating that "the above issues clearly demonstrate discrimination and unfairness".

.6 The applicant got no reply to this letter and the only other correspondence she received was when she received her P45 in early November 2003. This came in an envelope with no covering letter.

The Law

.1 Under Article 43(4) of the Employment Rights (Northern Ireland) Order 1996 ("the Order") an Industrial Tribunal shall not consider a reference under this Article, relating to failure of an employer to give a statement of employment particulars under Article 33, unless an application for a reference to be made is made –

"(a) before the end of the period of three months beginning with the date on which the employment ceased, or

(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the application to be made before the end of that period of three months".

2 A similar time limit is imposed under Article 55 of the Order in respect of a complaint to an Industrial Tribunal that unlawful deductions have been made from wages. The three months period runs from the date of payment of the wages from which the deduction was made. The same proviso is also applied concerning the practicability of the applicant making a complaint within that period. The Tribunal having authority to extend the period if it is of the view that it was not reasonably practicable for the complaint to be made within the time limit.

3 A similar time limit of three months is included in the right of the applicant to bring a claim for breach of contract under the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994. The Tribunal has authority to extend this period on the same terms as set out in 3.2 above.

Decision of the Tribunal

1 The decision of the tribunal is that all these claims were brought outside the three month period from the date on which the applicant left her employment. There is some doubt as to the exact date on which termination occurred as the applicant was expecting to work during course of the week commencing 1 September 2003 although she did receive the telephone call from her employer stating that she was not required so to work. However the tribunal hold that the three month period would have run from the end of the week commencing Monday 1 September 2003 i.e., 7 September 2003. Thus the application to the tribunal should have been received on a date no later than 6 December 2003. In fact the application was not received by the Tribunal Office until 7 January 2004 on which date it was date stamped by the Office of the Industrial Tribunals & the Fair Employment Tribunal. Notwithstanding this the document itself was dated by the applicant 30 November 2003.

2 Having regard to the fact that the document was complete on 30 November 2003 and could have been properly delivered to the Office of The Industrial Tribunals & The Fair Employment Tribunal before 7 December 2003 it was reasonably practicable for the applicant to file her application within the time limit.

3 The applicant had been in touch with the Citizens Advice Bureau and had received advice from that organisation and had also written her letter of complaint on 2 October 2003, in which she referred to discrimination and unfairness. These matters indicate that the applicant was aware of her rights and was following through with her claim. There appears to be no reason why she could not lodge her application form within the time limit and even her excuse that she was awaiting the return of her P45 does not explain the delay as the P45 was received by her early in November 2003. She still had a month in which to lodge her application after her P45 arrived.

4 For all these reasons the applicant's claim is dismissed.

Chairman:

Date and place of hearing: 22 September 2004, Belfast.

Date decision recorded in register and issued to parties: