Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 254/05

CLAIMANT: John Joseph Curry

RESPONDENT: Fermanagh District Council

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the tribunal does not have jurisdiction to hear the claimant's claim of unfair dismissal in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for the presentation of his claim.

Constitution of tribunal:

Chairman (sitting alone): Ms Sheils

Appearances:

The claimant appeared and was represented by Mr Patrick Pearse McGovern.

The respondent was represented by Mr David Dunlop, Barrister-at-Law , instructed by Cooper Wilkinson, Solicitors.

The issue

1. The issue for the tribunal was as follows:-

(i) Whether the tribunal has jurisdiction to entertain the claimant's claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his claim.

Sources of evidence

2. The tribunal heard evidence from the claimant. The tribunal also heard evidence from the claimant's representative. The respondent presented no witnesses. They submitted to the tribunal a chronology of events that was agreed by the claimant as being a history of events. The tribunal heard submissions from both parties.

The claimant appeared to be partially deaf and seemed to have difficulty understanding the tribunal processes and procedures, including the tribunal hearing. The claimant's representative, Mr McGovern, explained the procedure to the claimant. The claimant's representative agreed to give evidence as to events as far as he was aware of them and to call evidence from the claimant as required.

Findings of fact

3. The tribunal considered the evidence and the submissions and found the following facts:-

(1) It was accepted by the parties that the claimant had commenced his employment with the respondent on 13 October 1986 as a Village Orderly/General Labourer, Kinawley. It was also accepted by the parties that after a disciplinary process, the claimant was dismissed by the respondent on 23 April 2004.

(2) In May 2004, the claimant appealed against this dismissal. At that stage the claimant had support and representation from a full-time trade union official. In a letter dated 26 May 2004, the respondents confirmed their decision to dismiss the claimant.

(3) Accordingly, any claim to a tribunal alleging unfair dismissal ought to have been presented to the tribunal on or before 23 July 2004.

(4) The tribunal found the evidence and submissions from both the claimant and his representative, Mr McGovern, in relation to how or why the claim was not lodged with the tribunal before 26 January 2005 to be unclear and confused. The claimant's representative could not state precisely when he first became aware of or involved in the claimant's situation, but believed that it was just before the claimant's first disciplinary hearing, in April 2004. Mr McGovern knew the claimant's brother, their having been neighbours for some time. At this stage, the claimant's representative's involvement was limited to making enquiries about trade union representation at such disciplinary hearings. The tribunal found that Mr McGovern told the claimant before the disciplinary appeal hearing that he could bring a complaint of unfair dismissal to a tribunal.

(5) The tribunal found that Mr McGovern renewed his involvement when he became aware that the claimant had lost his appeal. The tribunal found that Mr McGovern offered to assist the claimant bring a claim to the tribunal and that the claimant agreed that he should do so. The tribunal found that the claimant made no efforts to do so on his own behalf. The tribunal found that this conversation between the two men occurred in or about August 2004, although no precise date was given.

(6) The tribunal noted that Mr McGovern was aware that there was a time limit within which claims should be brought to a tribunal. The tribunal did not accept that Mr McGovern, having been a trained trade union representative for 15 years in London and for three years in Northern Ireland, was unaware of what the time limit actually was.

(7) The tribunal accepted that Mr McGovern made some enquiries of the Citizens Advice Bureau and the Labour Relations Agency as regards the bringing of a claim on behalf on the claimant but, again, the tribunal was given no dates as to when any such enquiries were made.

(8) The tribunal noted the evidence that neither agency gave advice on the time limit within which such a claim should be brought. The tribunal found that the enquiries were superficial and accepts that there was no discussion of time limits in the discussions with either of them. The tribunal also accepts that Mr McGovern obtained a claim form on the claimant's behalf but Mr McGovern was unable to advise the tribunal when he had done so.

(9) The tribunal found that Mr McGovern went to the claimant's house and assisted him to complete the form, in either the first or second week of January 2005. The tribunal noted that Mr McGovern posted the claim form in approximately the third week in January 2005. There was no explanation given as to why it had taken so long from the beginning of Mr McGovern's second involvement with the matter, which was either August 2004 or some time after the claimant lost his appeal for the claim form to be obtained and thereafter lodged.

(10) The tribunal found that the claimant made no enquiries on his own behalf or even any telephone call to any agency or trade union for any advice in respect of any claim he wished to bring. The tribunal found that although the claimant knew of a solicitor in Enniskillen he had not contacted him for any advice.

The law

4. Under the Employment Rights (Northern Ireland) Order 1996, Article 145(2):-

"… an Industrial tribunal shall not consider a complaint [of unfair dismissal] unless it is presented to the tribunal –

(a) before the end of the period of three months beginning with the effective date of termination; or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

As set out in (b) the three months' time limit may be extended. There are two separate aspects to this extension of the time limit; the first is that the tribunal must be satisfied that it was not reasonably practicable for the complaint to have been lodged within the three months' limit; the second is that the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. It is clear that the tribunal must be satisfied on the issue of reasonable practicability before it addresses whether the further period within which the claim was lodged is itself reasonable.

The tribunal also considered the leading authorities in this area, namely, Wall's Meat Co Limited –v- Khan, [1978], IRLR 499; Palmer and Saunders –v- Southend-on-Sea Borough Council, [1984], IRLR 119, (which referred to Singh –v- Post Office, 1973, ICR 437); Marks and Spencer plc (Appellants) –v- Williams-Ryan (Respondent), [2005], IRLR 562.

Conclusions

5. The tribunal finds that in the circumstances of this case where the claimant knew of his right to take a complaint to a tribunal but made no enquiries himself as to how he should go about it nor to ask anything of the people whom he believed were sorting it out for him, where the claimant's adviser/helper made some enquiries on the claimant's behalf but provided no explanation as to why these enquiries took place in a period of, at worst, eight months (May 2004 to January 2005) or at best five months (August 2004 to January 2005) before the claim form was obtained and lodged, and where this adviser was a trained trade union representative, the tribunal was not satisfied that it was not reasonably practicable for the claim to have been presented within the three month time limit.
6. In view of this finding, the tribunal does not need to address the issue of whether the time within which the claim was, in fact, presented was reasonable.

Accordingly the tribunal does not have jurisdiction to hear the claimant's claim and the claim is dismissed.

The tribunal makes no order as to costs.

Chairman:

Date and place of hearing: 19 December 2005, Enniskillen

Date decision recorded in register and issued to parties: