Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 2754/04

CLAIMANT: Peter Brown

RESPONDENT: Secretary of State for Defence (MOD)

DECISION

The unanimous decision of the tribunal is that the tribunal concludes that it has no jurisdiction to deal with the claim because the originating application was presented out of time; and that there is no ground which could satisfy the tribunal that it was not reasonably practicable to present it before the end of that period.

Constitution of Tribunal:

Chairman: Mr T G Browne

Appearances:

The claimant attended and represented himself.

The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by the Crown Solicitor.

THE ISSUES

The issue to be determined at pre-hearing review was whether the tribunal had jurisdiction to determine the claim pursuant to the Working Time Regulations (Northern Ireland) 1998, having regard to the time limit set out in Regulation 30(2).

A second issue as to whether the claimant had availed of a redress procedure was not proceeded with.

FINDINGS OF FACT

The tribunal made the following findings of fact from the documentation and from evidence of the claimant.

The claimant became aware at the end of May 2004 that the respondent had paid him in lieu of holiday entitlement for leave not taken during his previous leave year, which ended in April 2004. This payment was at the request of the claimant and was in accordance with established MOD employment practice.

The claimant disputed the method of calculation of the daily pay rate, which he was aware from the outset of the dispute was in accordance with established MOD practice.

The claimant made exhaustive internal representations on his own behalf to his authorities, which ended in mid-September 2004. At that point, he was informed that the Crown Solicitor's Office were to take over responsibility for conducting the matter on behalf of the respondent.

The claimant then decided to have recourse to the Industrial Tribunals, and presented his claim on 8 October 2004.

CONCLUSIONS

In reaching its conclusions the tribunal considered the findings of fact, the legislation, the evidence and submissions by the claimant and counsel for the respondent.

The relevant legislation is the Working Time Regulations (Northern Ireland) 1998.

Regulation 30(2) states:-

"An industrial tribunal shall not consider a complaint under this regulation unless it is presented -

(a) before the end of the period of three months … beginning with that date on which it is alleged … the payment should have been made; 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".

In the present case, the claimant conceded that he was aware from the outset that this was a question of disputed method of calculation, as opposed to any mathematical error.

The tribunal therefore concluded that the time started to run from May 2004, making the three months expire at the latest on 31 August 2004.

The tribunal then considered the evidence in the context of Regulation 30(2)(b). The claimant did not seek to establish that there was any specific ground which could satisfy

the tribunal that it was not reasonably practicable to present the complaint within the three months.

The tribunal concurs with Ms Murnaghan in her expression of sympathy for the claimant, who had attempted to resolve the matter amicably with his employers, resorting to legal proceedings only when all such routes had been exhausted.

The test of reasonable practicality is significantly more restrictive than that of "just and equitable", which applies in other areas of employment legislation.

In the absence of any evidence that could satisfy the tribunal that it was not reasonably practicable to present the claim within time, there is no discretion to extend the time for presentation, and consequently the tribunal has no jurisdiction to hear this claim.

Chairman:

Date and place of hearing: 11 November 2005, Belfast.

Date decision recorded in register and issued to parties: