Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1641/04

CLAIMANT: Emmanuel Wilkinson

RESPONDENT: Ulster Branch Badminton Union of Ireland

DECISION

The decision of the tribunal is that it does not have jurisdiction to entertain the claimant's claim as it has been presented outside the three-month time-limit stipulated in Article 65(1)(a) of the Race Relations (Northern Ireland) Order 1997. The claimant's claim is therefore dismissed.

Constitution of Tribunal:

Chairman Mrs O Murray

Appearances:

The claimant did not attend and was not represented.

The respondent was represented by Mrs S Nixon, Barrister-at-Law, instructed by McEvoy Sheridan, solicitors.

1. The claimant's claim was for discrimination on the grounds of race contrary to the provisions of the Race Relations (Northern Ireland) Order 1997 (referred to below as "the Order").
2. The preliminary issues for the tribunal to determine were as follows:-

(a) Whether the claim was presented within the specified time-limit.

(b) If not, was it just and equitable, in all circumstances of the case, for an industrial tribunal to consider the claim despite the fact that it was out of time.

(c) Whether the tribunal had jurisdiction to hear the claimant's claim of racial discrimination in view of the provisions of Article 2 of the Race Relations (Northern Ireland) Order 1997 and the definition of employee contained therein.

3. The claimant did not attend and was not represented and no communication had been received from him as to his reasons for non-attendance. Counsel for the respondent indicated that no communication from the claimant had been received by the respondent in relation to this hearing.
4. The tribunal proceeded with the hearing in accordance with rule 27(5) and (6) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. Before reaching its decision, the tribunal considered the originating application form lodged by the claimant, a letter from the claimant to the Office of the Industrial Tribunals and Fair Employment Tribunal dated 14 March 2005, the Notice of Appearance lodged by the respondent and the evidence of Mr William Dewart, who is the current Development Officer for the respondent.
5. After hearing evidence from Mr Dewart and after having considered papers lodged by the claimant, the tribunal found the following facts relevant to the issues before it:-

(a) The respondent is an organisation which, amongst other things, organises courses of various levels to enable individuals to coach the sport of badminton. Courses are run every six to nine months. They are always over-subscribed and a waiting list is operated whereby information is sent out to interested individuals to alert them to forthcoming courses. The onus is on individuals to apply for and to attend the courses if allocated a place.

(b) The claimant attended a course on an unspecified date in 1998 and his main complaint centres on the way that that course was conducted.

(c) The claimant's other allegation on the originating application appeared to relate to his efforts to gain a place on other courses. No dates for these alleged attempts were given and the claimant was not in attendance to give any further information on that. Mr Dewart was clear in his evidence, which the tribunal accepts, that numerous unsuccessful attempts were made to contact the claimant at the six addresses he had given until an offer of a place on a course in 2004 was made. This offer was made prior to the date of the originating application, that is, prior to 17 February 2004, and prior to the respondent having knowledge that the claimant had lodged a claim for racial discrimination.

(d) If the claimant had contacted the office he would have been given information on forthcoming courses and his name would have been retained on the waiting list.

(e) Mrs Audrey Kincaid was the Development Officer before Mr Dewart and, following his appointment, she became the General Secretary of the organisation. Mrs Kincaid was a key person in the organisation who dealt with the claimant and she would have been a key witness for the respondent. Mrs Kincaid is now deceased.

(f) The claimant's originating application is dated 17 February 2004 and was presented on 1 March 2004. No reasons have been given for late lodgement of the proceedings.

6. Under The Race Relations (Northern Ireland) Order 1997 at article 65(1) the time-limit for presenting a claim is three months beginning when the act complained of was done. Under article 65(7) of the Order, a tribunal may consider a late claim if in all the circumstances of the case it considers it just and equitable to do so. The Employment Appeals Tribunal, in the case of British Coal Corporation v Keeble 1997 IRLR 636, held that the discretion to grant an extension of time on just and equitable grounds is as wide as that given to the civil courts by the Limitation Act 1980. The equivalent legislation in the jurisdiction is the Limitation (Northern Ireland) Order 1989. At article 50(4) of that Order are outlined the matters which can be considered and these include the extent of the delay, the reasons for the delay, whether advice was sought and whether action was taken as a result and the effect of the delay on the cogency of the evidence.
7. Applying the law to the facts as found, the tribunal finds that the originating application dated 17 February 2004 and received in the Office of the Industrial Tribunal on 1 March 2004 was presented outside the requisite time limit in the Race Relations Order, as regards the attendance on the course in 1998.
8. As regards any allegation that the claimant's efforts to obtain places on other courses were rebuffed by the respondent, the claimant has failed to particularise the dates of those alleged attempts. The tribunal therefore finds that the claimant has failed to present sufficient evidence to show that any claim in relation to those alleged incidents was presented to the tribunal within the requisite time limit.
9. On the question of whether it would just and equitable to extend time, the tribunal finds nothing on the papers nor on the evidence to persuade it to extend time. The onus was on the claimant to persuade the tribunal on that issue and he failed to discharge that burden. In reaching its decision the tribunal looked at the considerations outlined at paragraph 6 above. The claim was presented six years after the course in 1998. No reason for any delay was put forward by the claimant and none was apparent from the papers. There was no evidence presented relating to the claimant's efforts to obtain advice since the alleged act of discrimination although there was some reference on the papers to his being represented by the Equality Commission. There was no evidence of any advice received, when it was received nor the reasons for any consequent delay, on the claimant's part, in acting. As regards the cogency of the evidence if the case were allowed to proceed, it was clear from Mr Dewart's evidence that he was struggling to remember some details relating to the matter given the elapse of time and the fact that many of the dealings relating to the clamant had been dealt with by Mrs Kincaid. The fact that Mrs Kincaid, a key witness for the respondent, is now deceased, clearly affects the cogency of the evidence available to the respondent and this would result in prejudice to the respondent if time were extended.
10. On the question of whether the tribunal has jurisdiction to hear the case having regard to the definition of an employee under the legislation, the tribunal finds that it is not necessary to determine that issue given the findings on jurisdiction on the time point. Submissions had been made at the outset of the hearing that, as the claimant was not an employee, his claim must fail for want of jurisdiction. On the question of whether the claimant fell within the legislation it appeared to the tribunal that there might have been argument on the issue of whether the respondent came within the scope of article 15 of the Order which concerns the conferral of vocational qualifications given the definition of "training" in article 2 of the Order. As the tribunal decided to consider the time issue first, no further submissions or deliberations took place on this issue. In the circumstances, given the tribunal's findings at paragraphs 7, 8 and 9 above, there is no need for the tribunal to reach a finding on that issue given that the tribunal has no jurisdiction in any event.
11. The claim is therefore dismissed in its entirety.

Chairman:

Date and place of hearing: 9 November 2005, Belfast.

Date decision recorded in register and issued to parties: