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INDUSTRIAL TRIBUNALS

CASE REF: 1916/03

APPLICANT: Paul Peters

RESPONDENT: Dale Farm Dairies Ltd

DECISION

The unanimous decision of the tribunal is that the applicant's complaint had not been made within the prescribed time limits and the tribunal therefore did not have jurisdiction to hear the complaint.

Appearances:

The applicant was represented by Mr R Shields Barrister-at-Law instructed by L Cubitt & Co., Solicitors.

The respondent was represented by Ms N Murnaghan Barrister-at-Law instructed by Elliott Duffy Garrett, Solicitors.

The applicant was employed as a dispatch operative with the respondent at Penny Bridge, Ballymena.

The applicant's complaint was received in the Office of the Industrial Tribunals and Fair Employment Tribunal on 20 June 2003. His complaint was in respect of the non-payment of overtime for a period commencing November 2001 and ending on 24 November 2002. The respondent entered into a Salary Status Agreement with the Penny Bridge dispatch team and their trade union, USDAW in relation to overtime payments for Saturday work and rest days.

The applicant's interpretation of this Agreement was different to that of management and he considered he was entitled to double pay for Saturdays he had worked and that he had been underpaid in respect of thirty days at double time and eight days at time and a half.

The tribunal, for the purpose of the preliminary hearing, did not need to determine the applicant's entitlement, if any.

The question before the tribunal was "Whether the application came within the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996".

It is clear that following the implementation of the Agreement the applicant did raise an issue with management regarding their failure to pay him the higher rate in respect of Saturday workings. There were a number of meetings between himself and various managers and he said that he did not make an application to the tribunal as he was sure it could be sorted out. However, management's interpretation of the Agreement differed from that of the applicant and they were clearly of the opinion that his interpretation was incorrect.

Mr Shields for the applicant referred the tribunal to the case of Palmers & Saunders –v- Southend-on-Sea Borough Council [1984] IRLR 119 CA. He referred to matters to which a tribunal should give consideration to when considering whether it had been reasonably practical to have lodged an application. He drew particular attention to consideration as to whether an employer had misrepresented relevant matters to the employee. He submitted the applicant had been mislead as to the likelihood of payment. In the circumstances of this case there had not been substantial fault on behalf of the applicant. He considered that this was an appropriate case for the tribunal to extend the time limits.

Ms Murnaghan referred to the statutory provisions of Article 55 and contended that time started to run from 24 November 2002. The applicant had been aware from November 2001 that there was a problem and during the period from 24 November 2002 to the lodging of his application the applicant in his evidence admitted that he had consulted with solicitors in September and October 2002 and that he had also been in contact with his trade union in December and January 2003 when he had been advised to make an application to the tribunal to get them to sort it out. The applicant had failed to do so and the application before the tribunal had not been made within the three months time limit period. She also referred to the case of Palmers & Saunders and to the meaning of the words "reasonably practical", where it was held for the word "practicable" should be read as "feasible". The question therefore, …"Was it reasonably feasible to present the complaints to the tribunal within the relevant three months"? She submitted that it had been feasible for the applicant to have lodged his application and he had failed to do so.

The tribunal gave consideration to the case referred to by the representatives and to the provisions of Harvey and Industrial Relations Vol. 5 para. 188 "the tribunal must, however, address its mind to the question of reasonable practicability, where this is the test and not simply state that it has a discretion to extend time and must moreover make a precise finding as to the nature of the complaint in question, as to the relevant starting of the limitation period govern it before proceeding to consider whether any extension is appropriate". Case Taylor Plan Services Ltd –v- Jackson [1996] IRLR 184.

The nature of the complaint was that the respondent had failed to pay monies owed for Saturday working, a claim that was disputed by the respondent. The alleged deduction related to a period from November 2001 to 24 November 2002 therefore the starting date for the limitation period was 24 November 2002.

The tribunal were of the unanimous opinion that the applicant was aware from November 2002 that the question of payment was in dispute. He contended that there had been several meetings with management at which agreement was reached that he would be paid. Mr Mitchell for the respondent agreed that at a meeting in January 2002 he had agreed that the applicant had been underpaid for some Saturdays and this could have amounted to the sum of £200-£300.00 and he agreed that he would get what was due. Mr Mitchell's calculation was that the underpayments were to be made at the basic rate whereas the applicant was claiming underpayments at the premium rate. By March 2003 the applicant was still aware that matters were in dispute regarding his interpretation of the implementation of the Salary

Status Agreement. He had consulted with his trade union but considered this was a waste of time and although he had consulted his solicitors in September/October 2002 he had not raised this particular issue with them.

The tribunal were of the unanimous opinion that it had been feasible for the application to have been presented within the three months period from 24 November 2002 and he had failed to do so. He had discussions with his trade union and had meetings with his solicitors but considered he could solve the problem himself. The applicant has failed to show why it had not been reasonably practical to have submitted the application within the time limits and the tribunal does not have jurisdiction.

Chairman:

Date and place of hearing: 19 January 2004, Belfast.

Date decision recorded in register and issued to parties: