Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2976/04

APPLICANT: Stephen McNulty

RESPONDENT: Royal Victoria Hospital

DECISION

The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to entertain the applicant'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.

Appearances:

The applicant appeared and represented himself.

The respondent was represented by Mr Uel Crothers, Solicitor, of Brangam Bagnall & Company, Solicitors.

This is a decision in summary form.

THE ISSUE

1. The applicant's complaint in his originating application was of 'constructive dismissal'. In its appearance, the respondent contended that the application was out of time and requested a preliminary hearing on that issue. Accordingly, the matter was listed for hearing on the following preliminary issue:-

"Whether the tribunal has jurisdiction to entertain the applicant'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."

In addition, in view of the content of the respondent's notice of appearance, the tribunal had to determine the correct respondent.

THE TRIBUNAL'S FINDINGS

2. Having heard from the parties, and without objection, the tribunal determines that the correct respondent is Royal Group of Hospitals Trust.
3. It was not in contention between the parties, and the tribunal finds, that the applicant was employed by the respondent as a Porter and that employment commenced on 20 August 2001. The employment came to an end on 5 August 2004 and the tribunal finds that to be the effective date of termination of employment for the purposes of computation of time, as mentioned below.
4. The applicant presented his complaint to this tribunal by originating application dated 4 November 2004, that being received by the Office of the Tribunals on 8 November 2004.
5. The tribunal has no doubt that the applicant felt aggrieved in and around the time his employment came to an end. However, the tribunal is not concerned, for the purposes of this preliminary hearing, with any of the circumstances of the ending of this employment save those that are particularly material to the issues that fall for consideration in this preliminary hearing. In passing, it also must be said that the applicant did not assist his case due to the fact that his presentation of evidence and his recollection of events was rather unsatisfactory; the tribunal had some difficulty in determining the facts of the matter on that account.
6. In and around the time the applicant's employment came to an end, the applicant approached and sought advice from the Labour Relations Agency. It is not entirely clear to the tribunal whether or not there was specific discussion between the applicant and his adviser in Labour Relations Agency as to the issue of time limits.
7. The applicant also discussed his situation after the employment came to an end with an acquaintance, a Miss Kelly, who apparently worked in the Citizen's Advice Bureau. Also around the material time, as far as the tribunal can ascertain some two to three weeks before the applicant lodged his originating application with the tribunal, the applicant spoke with a Ms Kernoghan of Labour Relations Agency. The applicant obtained the form of originating application from the Office of the Tribunals. The applicant went to see a Solicitor in the firm of Bogue & McNulty, Solicitors.
8. Insofar as the tribunal can determine the facts (which it must be said is with some difficulty in view of the quality of the applicant's evidence) the applicant had at an early stage considered the possibility of issuing proceedings, but for a number of reasons did not take that step. The applicant's decision to actually put into effect his earlier formed but somewhat uncertain determination to issue these proceedings, it appears, arose from a conversation which ensued with Miss Kelly of Citizen's Advice Bureau some two to three weeks before the application was indeed issued. Legal advice and assistance was then sought by the applicant. The applicant met with the solicitor on 4 November 2004, on which date the originating application was completed. The applicant in the solicitor's office did approve the content of the originating application. However, for a reason to which the tribunal finds no explanation, the applicant appears not to have signed the application personally, although the application form does bear a signature in his name. The application was submitted to the Office of the Tribunals under cover of a letter dated 4 November 2004, unsigned, and purporting to come from the applicant and bearing his home address, not under a letterhead from the Solicitor's Office. It is difficult for the tribunal to determine precisely what facts are behind the foregoing, and perhaps it shall suffice to say that the tribunal can see no facts supporting the view that there was any physical or psychological impediment or difficulty which would otherwise have prevented the applicant from presenting his originating application to the tribunal within the statutory period provided on foot of the Employment Rights (Northern Ireland) Order 1996.

THE TRIBUNAL'S DECISION

9. The applicant's complaint to the tribunal was of unfair constructive dismissal. An employee has the right not to be unfairly dismissed by his employer under Article 126 of the Employment Rights (Northern Ireland) Order 1996. Under Article 145 of the said Order, a complaint may be presented to a tribunal against an employer by any person that he was unfairly dismissed by the employer. However, Article 145(2) of the said Order provides that an industrial tribunal shall not consider a complaint under that Article 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 it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
10. The tribunal makes no finding in this case, in view of the insufficiency of the evidence, as to whether or not the applicant's advisers, including any solicitor, were at fault. There may have been default, or there may not have been, but the tribunal cannot determine that with any certainty. There is no need to recite the law in this summary decision as to the situation which would apply where professional advisers were to be at fault. It appears that the application was posted. The applicant made no case expressly that there had been postal delay. Nonetheless, in regard to the issue of possible postal delay, the tribunal notes the case of Consignia plc v Sealy [2002 IRLR 624]. Amongst the guidance of the Court of Appeal in that case, is the proposition that if a complainant chooses to present a complaint by sending it by post, presentation will be assumed to have been effected, unless the contrary is proved, at the time when the letter would be delivered in the ordinary course of post. If by first class post, it is now proper to conclude that in the ordinary course of post it will be delivered on the second day after it was posted. The application was received by the tribunal on 8 November 2004, out of time. In this situation the tribunal has to determine whether or not it was reasonably practicable for the application to have been presented within the statutory time limitation of three months.
11. In this case, having no good reason to take any other view and looking at all of the facts, the tribunal determines that it was indeed reasonably practicable for the application to have been presented within the specified time limit. Accordingly, the tribunal does not have jurisdiction to entertain the applicant's claim in view of the provision of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his claim. The complaint is dismissed, without further order.

Chairman:

Date and place of hearing: 24 March 2005, Belfast

Date decision recorded in register and issued to parties: