Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

Case Ref No: 2268/04

Applicant: G. Hughes

Respondent: John Close

DECISION

The unanimous decision of the tribunal is that the originating application is out of time. Accordingly, the tribunal dismisses the complaints in their entirety, without further order.

Appearances:

The Applicant did not appear and was not represented.

The Respondent appeared in person.

Extended Reasons:

Pursuant to Rule 12(4) (d) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004 ["the 2004 Rules"], the Tribunal considers that this Decision should be given in extended form.

The Tribunal Found the Following Facts

1. By his originating application, presented on 21 July 2004, the applicant claimed:

   I was made redundant on Dec. 19 2004 (sic.). My employer had assured me that he had everything ready for me. He then said there was a mix-up with his accountant and that he would send me the money.

   He was contacted at the end of January 2004 and sent me £500 with a promise the rest would come later. After many such promises I realised that he had no intention of paying me the rest.

   I went to see a solicitor who sent me to the Labour relations Agency who told me there is a strict time limit of six months. I know I am now over this. My employer obviously knew what he was doing.

   The amount of £1160 is still outstanding. Am I to lose this because of the sly actions of my employer? I really hope you can be flexible in the circumstances.

   I was supposed to get:

   6 weeks wages (I don't know what my gross wages were. I just get a cheque for £150)

   2 weeks holiday pay

   2 weeks in lieu of notice

   3 days wages (I got hurt on 10 December 2003) for 8^th 9^th & 10^th

   7 days sick pay (from 11^th & 12^th and 15^th to 19^th Dec 2003)

2. The originating application was sent to the respondent on 20 August 2004.

3. The respondent presented before us a notice of appearance which had not been previously presented to the Office of the Industrial Tribunals, pursuant to Rule 3 of Schedule 1 of the 2004 Rules. The respondent was unsure as to when he had presented the notice of appearance, and is of the belief that he sent it to the Office of the Industrial Tribunals in or about 7 November 2004. There is no record on the tribunal's file in this complaint as to whether the notice of appearance was presented before today's hearing. The respondent sought an extension of time to 9 December 2004 to present his notice of appearance.

4. The parties were notified of the hearing on 9 December 2004 by notice of hearing dated 27 October 2004. The Office of the Industrial Tribunal received correspondence from the applicant dated 8 November 2004 which refers to the notice of hearing dated 27 October 2004. Given that the applicant did not appear before us, and the procedure followed by the tribunal, we are of the view that in making these findings of fact it is important that we set out, in full, what the applicant stated in this letter of 8 November 2004;

   …I am afraid I cannot add anything further to what information I have already sent to the Tribunal.

   Unfortunately, as you can appreciate, I have no proof of much of what I have stated.

   I have no proof he only gave me two week's notice.

   I have no proof he owed me ten days holiday pay.

   I have no proof even of my gross wages as he never gave me any payslips. On (sic.) hindsight, Mr Close has been very clever about all this.

   However, I hope you can tell from the enclosed copies of my bank statements that Mr Close has not been exactly telling the truth.

   I asked Mr Close for a rise on Fri. 16 May 2003. He agreed £10. So my last wage of £140 would have been on Friday 16 May '03. Now, as you can see from my bank statement for May '03, I wasn't paid until Fri. 31^st May '03. He gave me a cheque for £440 i.e. Fri. 16^th May £140: Fri. 23^rd May £150 and Fri. 31^st May £150. I have underlined subsequent cheques paid to me by Mr Close and as you will see it was not uncommon for me not to get paid for weeks at a time. Also, sometimes he paid me partly in cash.

   I will abide by the decision of the Tribunal.

   Yours faithfully

   G. Hughes

5. Therefore, the applicant was aware that the tribunal would sit to hear his complaint on 9 December 2004. Pursuant to Rule 3 of Schedule 1 to ["the 2004 Rules"], the tribunal found and determined the notice of appearance is out of time. Pursuant to Rule 3 (4) (a) of Schedule 1 of the 2004 Rules, the respondent made application for time to be extended on ground that it was late October 2004 before he was given the originating application, and he filled in the notice of appearance as soon as he could find time, on 7 November 2004.

6. Having considered this application, and there being no objection from the applicant (whom we found had been duly notified of the hearing, had set out his complaint at its height and indicated that he would "abide by the decision of the Tribunal"), the tribunal determined that time for presentation of the notice of appearance should be extended to 9 December 2004, pursuant to Rule 17 (1) of Schedule 1 to the 2004 Rules. The tribunal took this decision because the respondent satisfied us that he sent in the notice of appearance as soon as he could find time, 7 November 2004. Having made this determination, the tribunal considered that it should proceed to hear the respondent, pursuant to Rule 11(3) of Schedule 1 to the 2004 Rules, and that it would take into consideration the entire originating application and all the representations set out in the applicant's letter of 8 November 2004, which it has taken care to set out above.

7. Since the applicant was not in attendance at the hearing, and having set out his written representations in full, the tribunal considers it is important that it shows equal importance to the respondent's case as set out at section 7 of the notice of appearance, where the respondent contended that:

   This ex-employee (a previous union official) has been running a spiteful vendetta against me all year, and anyway his claim is outside the 6 months statute.

   He started by staging a back injury while working his notice. I have witnesses who warned me about a possible set-up. He has told mutual acquaintances that he'll never need to work again! He has bombarded Health & Safety with malicious accusations all year – ref Anthea Carlisle, H&S Dept, who is willing to be subpoenaed. They are satisfied no action is necessary. However, Gerry keeps trying!

   Notice.

   Gerry was entitled to 4 weeks notice. He had eight approximately. End of October, I told him I was in a bad situation and would have to shut up shop and move home. His response at that time was to fake a hand injury for a couple of days. I organised a clearance auction for November 19 and spent approximately £2000 advertising on the Telegraph, Newsletter and Autotrader. It was well publicised. Gerry was again told that he was going that week. It is totally disingenuous to say he did not get enough notice. My mistake was not putting it in writing. The diary however backs it up.

   Holidays

   Gerry was entitled to 20 days including statutory holidays. By his own figures he has well exceeded this. He conned me earlier into getting ½ days off on Wednesdays. Also he was paid full holidays in his first year which he hadn't earned.

   Rates of Pay

   The only point about which he's right! He was on £150 take home. I was doing previous years' accounts where £140 was the take home pay and that stuck in my mind. The previously-mentioned excessively taken holidays by far outweighs this £10 error on my part. The fact is, he owes me money…

8. The respondent is a sole trader who buys and sells machinery. The applicant had worked for the respondent for four years. The respondent notified the applicant in October 2003 that he was in financial difficulties and would be compelled to down-size the business and move his trading to work from home with effect from Christmas 2003. The applicant's last day at work would thus have been 19 December 2003. The applicant did not work for the respondent after 10 October 2003.

9. The applicant made a number of allegations against the respondent to the Health & Safety Executive. The Tribunal received in evidence a letter from Anthea Carlisle (Health & Safety Inspector with the Health & Safety Executive for Northern Ireland "HSENI") dated 9 December 2004, which confirmed that HSENI had received a complaint about the respondent's business on 20 April 2004, with seven subsequent follow-up letters from the same complainant. The evidence before the tribunal is that the HSENI propose to take no further action against the respondent in regard to this complaint.

10. The tribunal finds the respondent has paid the following monies by cheque to the applicant;

    i. £500 paid in January 2004;

    ii. A redundancy payment totalling £1056 (£176 x 4 x 1.5) paid on 17 September 2004;

    iii. 3 days' wages for 8-10 December 2003 totalling £84. This was sent to the Applicant on 17 September 2004;

    iv. 1 week's Statutory Sick Pay totalling £65, sent to the Applicant on 17 September 2004;

    v. 1 week's holiday pay of £140 paid on 17 September 2004.

11. The applicant therefore has received a total of £1345.00 from the respondent on 17 September 2004. This is £185.00 in excess of the amount claimed on the face of the originating application.

12. The tribunal considered the bank statements attached to the applicant's letter dated 8 November 2004. However, these documents were of limited use to the tribunal in making its findings of fact, since the latest of the statements is dated 31 December 2003.

    The Decision of the Tribunal

13. The tribunal has considered the originating application, notice of appearance, the applicant's representation dated 8 November 2004, all the evidence before it, and the submissions made by the respondent. The tribunal makes the following Decision on foot of the Findings of Fact above.

14. By a unanimous decision, the tribunal makes the following decision:

    A. By Article 199(1)(c) of the Employment Rights (NI) Order 1996 ["the 1996 Order"], the applicant has six months from the relevant date to present a complaint about the amount of the payments he should have received from his employer upon a redundancy. The applicant's effective date of termination (the relevant date) would have been 19 December 2003. The complaint was not presented on or before 19 June 2004, and in fact was not presented until 21 July 2004^[1]. Accordingly, pursuant to Article 199 of the 1996 Order, the applicant's complaint is out of time by one month and two days.

    B. Having found that £1345 has been paid to the applicant by the respondent on 17 September 2004, which is £185 in excess of the amount claimed by the applicant on the face of his originating application, and having regard to the provisions of Article 199(2) of the 1996 Order, the tribunal has before it no evidence upon which it could reliably extend time.

    C. In passing, we note that the applicant was capable of presenting a complaint to the HSENI on 20 April 2004 and followed that complaint with seven letters, and yet did not present his complaint within the time limit by 19 June 2004.

    D. The complaint is out of time and the tribunal is not minded to extend time. Even if it did

    extend time, the respondent has paid £185 more than appears to be claimed in the complaint. Thus, we can see no merit in the complaint in any event.

    E. Pursuant to Rule 11(3) of Schedule 1 to the 2004 Rules, the tribunal therefore dismisses

    the applicant's claims in their entirety.

    F. No further or other Order is made.

    Chairman:

    Date and Place of Hearing: 9 December 2004, Belfast

    Date decision recorded in register and issued to parties:

Note 1   The Tribunal checked the date stamp on the envelope was 21 July 2004    [Back]