Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2004/415_04.html
Cite as: [2004] NIIT 415_4, [2004] NIIT 415_04

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THE INDUSTRIAL TRIBUNALS

CASE REF: 415/04

APPLICANT: John McNally

RESPONDENT: J C Campbell (NI) Limited

DECISION

The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to deal with the applicant's complaints and the complaints are dismissed by the tribunal without further order.

Appearances:

The applicant was represented by Mr John McKenna, Solicitor, of Eamonn McEvoy & Co., Solicitors.

The respondent was represented by Mr Richard Shields, Barrister-at-Law, instructed by

S C Connolly & Co., Solicitors.

This is a decision in summary form.

THE ISSUE

The applicant's claim was of "unlawful deduction from wages and breach of contract". This claim was resisted by the respondent. At the outset, the respondent's representative contended that the claim had been presented to the tribunal out of time and that the tribunal did not have jurisdiction to deal with it on that account. Accordingly, the tribunal had to determine, as a preliminary issue, whether or not it had jurisdiction to deal with the applicant's complaints.

THE TRIBUNAL'S FINDINGS

In making its findings of fact concerning the jurisdictional issue, the tribunal considered the applicant's Originating Application and the Appearance thereto by the respondent and heard from the applicant's Solicitor who was in attendance before the tribunal. The tribunal found the following facts:-

The applicant's complaint was contained in an Originating Application which was dated 22 January 2004 and was received by the Office of the Industrial Tribunals and Fair Employment Tribunal ("OITFET") and date stamped "28 January 2004". The complaint contained in paragraph eleven of that Originating Application was "unlawful deduction from wages and breach of contract". The respondent had entered an Appearance to this application in which the jurisdictional time point had not been taken. However, it was explained to the tribunal by the respondent's representative at hearing that the respondent had only a short time before the tribunal hearing date sought legal representation and, upon being so advised, it was decided that the jurisdictional issue would be taken as a point by the respondent.

It was not in contention between the respective representatives that the applicant was employed by the respondent and that this employment commenced in or about 16 July 2002 and came to an end on 24 October 2003. It was agreed between the parties that, for the purposes of computation of time, the effective date of termination was 24 October 2003, and the tribunal found that date to be the effective date of termination.

The applicant's Solicitor, Mr McKenna, had on foot of instructions received from the applicant prepared the Originating Application form. This form having been prepared was then signed by the applicant and was dated 22 January 2004, that date being a Thursday.

The following day, Friday 23 January 2004, a letter was prepared by the Solicitor's legal secretary to accompany the Originating Application which was intended to be dispatched that day to OITFET. Apparently the applicant's Solicitor, being alert to the statutory time limitation issue, gave consideration to the possibility of sending the Originating Application by facsimile transmission to OITFET. However, it appears that, by the stage of the day that the letter to accompany the Originating Application had been prepared, it was approximately 2.45 pm. The Solicitor was reluctant it seems, as his legal secretary was due shortly to finish her day's work, to impose upon her by giving her the extra work involved in preparation of a facsimile transmission. The applicant's Solicitor took the view that transmission of the Originating Application to OITFET by first class post that day (Friday) would be appropriate and that by sending it by that means the Originating Application form would be received by OITFET within the statutory time period.

OITFET was in and around the material time affected by a period of industrial action on the part of the majority of staff of the Office. The OITFET premises were in fact closed entirely on Friday 23 January, Monday 26 January and Tuesday 27 January 2004. The OITFET premises at Waring Street, Belfast do not have an external post box enabling mail to be received into such a facility. OITFET has security staff on duty from 8.00 am – 6.00 pm each working day and any mail received in the normal course of post during those times, or any documents which are subject to personal delivery or delivery by other means, can be received into the premises during those hours from Monday – Friday of each week, saving holidays. On account of the industrial action, the OITFET office manager had made specific arrangements for the office fax machine to be fully stocked and to be placed fully in an operational condition so as to receive the expected higher volume than normal of facsimile transmissions on account of the fact that the Office would have been unmanned for a number of days. A facility therefore existed for receiving facsimile transmissions into OITFET when the premises were otherwise closed and the time of transmission and receipt would have been recorded in respect of any such. The tribunal did not hear any evidence that the OITFET facsimile receiving facility was out of action or was suffering from any defect preventing receipt of transmissions at the material time. Any mail which would otherwise have been delivered to OITFET was held by the Post Office and was finally delivered to the premises on Wednesday 28 January 2004 when OITFET again reopened for normal business. Included among such post was the applicant's Originating Application.

THE TRIBUNAL'S DECISION

The applicant complained to the tribunal of unlawful deduction from wages and breach of contract. In regard to the applicant's wages complaint, Article 55 of the Employment Rights (Northern Ireland) Order 1996 provides that a worker may present a complaint to a Industrial Tribunal in respect of an unlawful deduction of wages. That complaint must be presented within a period of three months beginning with the date of payment of the wages from which the deduction was made or, in respect of a series of deductions, the last deduction in the series. The last date this could have been is the effective date of termination. However, where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that time, such may be presented within such further period as the tribunal considers reasonable. The tribunal's jurisdiction for breach of contract derives from the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994. Article 3 of that Order allows proceedings to be brought before an industrial tribunal by an employee for damages or any other sum (other than in relation to personal injuries) if, inter alia, the claim arises or is outstanding on the termination of the employee's employment. Article 7 of that said Order provides that such a claim must be presented to an industrial tribunal within three months beginning with the effective date of termination or, where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within that time, within such further period as the tribunal considers reasonable.

The tribunal took note of the fact that the applicant's Solicitor was, by his own confirmation, aware of and alert to the jurisdictional issues in respect of statutory time limitations concerning the type of complaints in respect of which he had been instructed. The Solicitor had considered the possibility of sending the Originating Application by facsimile transmission on Friday 23 January 2004, but had decided against doing so. A facility existed in OITFET for receipt of such Originating Applications on that date, notwithstanding that the Office was otherwise unmanned in view of the staff being engaged at the time in the industrial action. Despite this, the Solicitor chose to dispatch the Originating Application that day, Friday 23 January 2004, by first class post. The Solicitor had indicated to the tribunal that he took the view that the Application would have been received in the normal course of post the following day. In fact, leaving aside the issue of industrial action, the OITFET premises is not open on a Saturday and there is no facility for receiving post. In the normal course of things post can only be received by staff in attendance in the premises between the hours of 8.00am and 6.00pm Monday through to Friday of each week. It is impossible to receive post by any other means and documents to be transmitted outside these hours and days ought properly to be and can be sent by facsimile transmission or by other electronic means. The tribunal heard no explanation as to why the applicant and his legal representative had not prepared and dispatched the Originating Application well within the period of three months provided by statute, nor of any impediment to that being done.

As the effective date of termination was 24 October 2003, the Originating Application ought to have been presented to the tribunal on or before 24 January 2004.

This is not one of the category of cases where an applicant was ignorant of his right to claim or where advisers were at fault due to a mistake in the interpretation of time. Here, clearly, the Solicitor acting on behalf of the applicant were fully conversant with the applicable time limitations and was cognisant of the fact that time was very shortly about to expire. A decision was taken on 23 January 2004 by the Solicitor to entrust the Application to first class post and to leave aside the possibility of sending that by facsimile transmission.

In regard to the issue of postal delays, the tribunal notes the leading case of Consignia plc –v- Sealy [2002] IRLR 624. Amongst the guidance of the Court of Appeal in that case, is the proposition that if a complainant chooses to pursue a complaint by sending it by post, presentation will be assumed to have been effected, unless the contrary is proved, at the time when the letter would be delivered in the ordinary course of post. If a letter is sent by first class post, it is now proper to conclude that in the ordinary course of post it will be delivered on the second day after it was posted (excluding those days upon which post is not normally delivered). If a letter does not arrive at the time when it would be expected to arrive in the ordinary course of post, but is unexpectedly delayed, a tribunal may conclude that it was not reasonably practicable for the complaint to be presented within the prescribed period.

In this case, the applicant's Solicitor posted the Originating Application by first class post being cognisant of fact that the three month time limitation expired the following day, 24 January 2004. There was no facility normally available for receipt of post on that following day into the OITFET premises. An alternative, in the tribunal's view, was available to the applicant and his Solicitor and that was to send the Application by facsimile transmission whereby, notwithstanding the fact that OITFET staff were engaged in industrial action, the application would nonetheless have been properly received by OITFET on that date, 23 January 2004.

In the tribunal's view, it was not a reasonable expectation on the part of the applicant's representative to expect that an Application posted, albeit by first class post, the day before a time limit was due to expire, that day of posting being a Friday, would be received in the ordinary course of post by OITFET the following day. As it was, the industrial action delayed actual receipt until Wednesday 28 January 2004. In the tribunal's opinion that is of little consequence. Even if the Application had been received in the ordinary course of post on Monday 26 January 2004, which it might have been in the event of there being no industrial action, it would have been out of time. The Application was prepared and was signed by the applicant and dated (Thursday) 22 January 2004. The tribunal heard no explanation as to why it had not been dispatched that day rather than the preparations for dispatch being made the following day, Friday 23 January 2004. That was of concern to the tribunal especially in view of the fact that time was just about to expire and the applicant's representative was alert to that fact.

Taking all of this together, the tribunal determines that it was reasonably practicable for the applicant to have presented his complaints to the tribunal within the statutory time period of three months provided. That being the case, the tribunal has no jurisdiction to hear and to determine the applicant's complaints and these complaints are dismissed by the tribunal without further order.

Chairman:

Date and place of hearing: 9 September 2004, Belfast.

Date decision recorded in register and issued to parties: