Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 635/03

APPLICANT: Maureen Ferreira

RESPONDENT: J & A McCrystal T/A Drapersfield Nursing Home

REPRESENTAIVES:

APPLICANT: The applicant was represented by Mr L McVeight, Barrister at Law, instructed by Gerard Mooney Solicitors

RESPONDENTS: The respondents were represented by Mr M Wolffe, Barrister at Law, instructed by P A Duffy Solicitors.

DECISION
1. The application was employed by the respondent in the nursing home from 7 December 1998 until 16 September 2001 when she was dismissed. Her originating application was presented to the Tribunal on 27 February 2003. Counsel for the applicant stated that she attended her union representative on 19 September 2001 some 3 days after her dismissal. He stated the matter would be dealt with. In November 2001 she telephoned the union office at South Tyrone Hospital they said they had no documents about her. She re-attended the union representative and he completed a further form which he sent to Belfast. She then complained of inaction and wrote to the London office of the union on 12 March 2002. On 2 August 2002 she attended the Belfast office of the union and told the respondent that she would give them 1 month and then she would contact a solicitor. On 28 November 2002 she met her current solicitor and gave details of her complaint to him, there was a further gap from the end of November 2002 until 27 February 2003.
2. Counsel for the respondent drew our attention to the test to be applied at a time in a case of unfair dismissal. The phrase that the Tribunal must concentrate on is "reasonably practicable and the time limit is 3 months from the date of dismissal. This would mean that her claim should have been presented on 16 December 2001. Whilst we have considerable sympathy for the applicant because she put her faith in the trade union who from the evidence before this Tribunal have let her down badly. There are a number of gaps in this period of time over 2 years where the Tribunal has to ask why did applicant not take action herself. She is an intelligent lady who was able to communicate and write to the union's head offices in London. She attended their offices in Belfast, she gave an ultimatum of 1 month which she did not follow herself and similarly when she put her faith in the services of a solicitor he did not act with due diligence and he must have known that the claim was considerably out of time at that stage. Case law in this area points to the finding that an applicant who goes to skilled advisers and both a solicitor and a trade union are regarded as skilled advisers must then suffer the consequences if those advisers do not act with due care and diligence. In other words any claim lies against the parties that gave the advice for negligence. The Tribunals have to look at whether it was reasonably practicable for the applicant herself to pursue her claim and in this case we hold that it was. There is no physical reason why she could not have presented this claim herself other than she relied on advisers who let her down. The Tribunal has no discretion to extend a time limit for a claim of unfair dismissal. There are a number of delays that are unexplained in this case and the Tribunal finds that the originating application is not presented within the time limit or within a period which would be reasonably practical. Accordingly the originating application is dismissed.

DATE AND PLACE OF HEARING: 1 March 2004 in Omagh

CLERK: Gerry Kelly

_____________________________

MRS PRICE

Vice President

20 February 2004