Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 616/03

APPLICANT: Weslie Bailie

RESPONDENT: Fire Authority for Northern Ireland

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that the applicant's claim is presented outside the statutory time limit and the originating application is dismissed

Appearances:

The applicant was represented by Ms G Alexander of NISPA

The respondent was represented Ms D Murtagh, Solicitor of the Legal Services Department

THE ISSUES

The applicant had been employed as a finance officer with the respondent from 3 April 1995 to 3 May 2002 and he presented an originating application to the Tribunal on 20 February 2003. He claimed that there was a breach of the working time directive because he did not receive the amount of payment that he considered was due to him when his employment ended by reason of ill health. The applicant gave evidence to the Tribunal and stated that he was concerned when he realised in May 2002 that 9 days holiday pay were missing from his final payment. He was in correspondence with the respondent in relation to that and he also sought advice from his union. The Tribunal saw a letter sent to the applicant on 15 March 2002 which explained his leave entitlement. Ms Alexander from the applicant's union NIPSA wrote to the respondent in March 2002 and followed up with a number of letters which finally produced a response from the respondent in August 2002 which stated that the respondent was taking further legal advice on the matter and on 21 November 2002 the Counsel advised that the payment to the applicant had been correct in May 2002. On 4 February 2003 Ms Alexander wrote to the respondent and stated that NIPSA had taken legal advice and believed that they had an arguable case under the working time directive. She stated in her letter "however before we lodge proceedings we are giving the authority 10 days within which to present reasonable proposals for our consideration. The application was then lodged on 20 February 2003. The case made by the applicant and his representative was that they wish to resolve this matter without having recourse to Tribunal proceedings and the delays which were occasioned by the respondent in replying to them should not prevent the claim from being within the time. The applicant in cross-examinations stated that he was aware of Industrial Tribunals but not to the fine details with regard to time limits. The Tribunal bore in mind that he was a finance officer and was responsible for a number of persons of lower grades and he also was aware of other cases in which people had been paid more than he had.

The respondent considered that the time began to run from the date of the applicant's last payment which was in May 2002. She stated that the applicant's advisers were at fault in this case and that there was nothing to prevent them from lodging a claim at the same time as continuing in discussions with counsel.

The Tribunal has considerable sympathy for the applicant because he relied on his trade union to pursue his case. The Tribunal is aware that NIPSA is the largest union in Northern Ireland and Miss Alexander is a full-time official. She makes reference to seeking legal opinion in relation to this claim and the Tribunal is quite satisfied that she would have been aware of the time limits for presenting a claim and also the fact that it is quite possible to present a claim to a Tribunal and then withdraw it at a later stage if negotiations have proved useful. It is not simply enough to sit back and say in the interest of good industrial relations a claim cannot be brought to the Tribunal. The Tribunal is looking at a jurisdictional issues, namely whether it was reasonably practicable for the applicant to have presented his claim within the 3 month time limit. We are satisfied that the applicant is an intelligent man and he was aware of Tribunals and could very easily have made himself aware of the time limits. He was receiving advice from his union whilst he was on sick leave and before he had actually left the employment of the counsel and the issue of which he was complaining was the same issue throughout the course of 2002. The Tribunal has looked at the various cases which relate to skilled advisers and in particular the case of London International College v Sen 1993 IRLR, Riley v Tesco Stores 1980 ICR 323, Times Newspaper Ltd v O'Regan 1977 IRLR 101 and Syed v Ford Motor Company Ltd 1979 IRLR 335. Riley's case established that the question whether or not an advisers fault is to be attributed to the employee is no longer determinable solely by reference to whether or not the adviser was skilled or was engaged. The issue of reasonable practicability, being an issue of fact, must be determined by examining the all the circumstances and matters relating to the skill or lack of skill or engagement or otherwise of advisers are only relevant as part of the general overall circumstances of the case. In this case the Tribunal considers that the applicant himself should have completed an originating application as soon as he realised he had not been paid the amount that he considered he was due. He said quite fairly to the Tribunal that he was aware that other people in the past had been paid for days holiday and so he had a course of action in his mind at that time. It is unfortunate that his union took the course that they did and did not present a claim in time but it does not come within the definition of not reasonably practicable for the applicant to have done it himself or instructed his union to do it. If the union is at fault the applicant has a cause of action against the union for failing to advise him. The Tribunal in this case finds that the applicant's case is outside the statutory time limit provided and his originating application is dismissed.

___________________________

MRS PRICE

Chairman:

Date of hearing: 4 March 2004

Date decision recorded in register and issued to parties: