Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 71/04

72/04

CLAIMANTS: Martin McDonagh

Patrick Stokes

RESPONDENT: Event 22 Limited

DECISION

The tribunal determines that it does have jurisdiction to entertain the claimants' complaints in light of the provisions of Article 65 of the Race Relations (Northern Ireland) Order 1997.

The correct title of the respondent is Event 22 Limited and the tribunal orders that the title of the proceedings be amended accordingly.

Appearances:

The claimants were represented by Miss Bradley, Barrister-at-Law instructed by the Equality Commission.

The respondent was represented by Mr M. Bates.

This is a decision of the Chairman sitting alone in accordance with Rule 18 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

At the outset of the hearing, Mr Bates on behalf of the respondent indicated that the correct title of the party of the respondent was Event 22 Limited being a limited registered company. This is not objected to by the Equality Commission and accordingly the tribunal orders that the title of the proceedings be amended accordingly.

The tribunal also heard an application on behalf of the respondent for time to be extended under Rule 17 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2004 in that while notice of proceedings of a hearing had been served on the respondent by letter of 22 March 2005 it would appear that a copy of the originating application had not been served on the respondent until 28 April 2005. The respondent lodged a response on 6 May 2005 having faxed same to the Office of the Industrial Tribunals and Fair Employment Tribunal and to the Equality Commission and had applied today this morning for an extension of time. No objection

being taken by the claimant's representative to this application and having considered the history of the events as outlined, the tribunal has granted the extension of time to enter the appearance. The parties indicated that they are both in a position to proceed with the preliminary matter to be dealt with today.

The tribunal heard evidence from Veronica McEneaney, Martin McDonagh, Patrick Stokes, Geraldine Sheldon on behalf of the claimants. No evidence was called by the respondent. The tribunal also received a bundle of agreed documents which was itemised as A1.

This claim involved complaints by the claimants of discrimination on the grounds of race by virtue that the claimants alleged they were dismissed from employment on 24 August 2003 by the respondent or its employees and the reason for dismissal was that they were members of the Irish travelling community a racial group as specified in Article 5 of the Race Relations (Northern Ireland) Order 1997. However the issue for the tribunal today was whether the tribunal had jurisdiction to hear the claimants' complaint in view of the time limit set out in Article 65 of the Race Relations (Northern Ireland) Order 1997.

It was conceded on behalf of the claimants that the applications were lodged sixteen days outside the time limit prescribed by Article 65(1) of the Race Relations (Northern Ireland) Order 1997. The tribunal found the following facts:-

(a) Both claimants are members of the Irish travelling community and have low levels of literacy skills.

(b) Contact was made with the Equality Commission on behalf of the claimants in early September 2003 and applications for assistance were sent out for completion.

(c) The claimants attended with Veronica McEneaney, a community development worker, employed to assist the travelling community on or about 19 September 2003.

(d) Mrs McEneaney completed the forms as a result of interviews with the claimants but an accurate date for the dismissal from their employment namely 24 September 2003 was inserted in the applications as opposed to 24 August 2003.

(e) The application forms were received by the Equality Commission on 22 September 2003. The inaccuracy over the relevant dates for dismissal was not picked up in a way to prevent the relevant time limit for lodging proceedings to be correctly identified.

(f) Correspondence was forwarded to the claimants by the Equality Commission questioning the accuracy of the alleged date of dismissal but no other follow up occurred. The query over the date was obvious as was equally the signature on the application forms for assistance as they clearly were not the same writing as that on the body of the form which set out the summary of the events.

(g) It was not until some date between 4 December 2003 and 9 December 2003 that the correct date of the alleged dismissal was identified and originating applications lodged without further delay.

The tribunal considered Counsel's submissions and the cases cited. Having applied the relevant principles of law to the facts it was clear to the tribunal that the burden was on the claimants to satisfy the tribunal that it is just and equitable in all the circumstances to extend the time limit for lodging the originating application. The tribunal considered the authority of British Coal Corporation -v- Keeble [1997] IRLR & Others and Robertson -v- Bexley Community Centre [2003] IRLR.

The length of the delay in this case was short and the reasons are varied in that they involve errors of performance by more than one person but not by the claimants. The delay was so short as normally not to have affected the cogency of the evidence of the respondent's witnesses. However, in this case details of the originating complaint had not been served by the Office of the Industrial Tribunals and the Fair Employment Tribunal until 28 April 2005 due to error or oversight on the part of officers of the Office of the Industrial Tribunals and the Fair Employment Tribunal. It is clear that the claimants took steps promptly to receive appropriate professional advice and in light of their limited literacy it is questionable whether their failure to respond to the letter of 23 September 2003 can be laid at their door. The tribunal has taken into account that it is still possible for relevant witnesses to be traced by the respondent relevant to the issues that would have to be tried in this matter should the extension be granted. The tribunal has considered the legal principles enunciated or summarised in Chohan -v- Derby Law Centre [2004] IRLR and Mills –v- Marshall [1998] IRLR case. The tribunal concludes that the sixteen day delay in submitting the application does not prevent it being possible for there to be a fair trial of the issues raised by the complaints. The tribunal concludes that in all the circumstances of this case it is just and equitable to exercise its discretion as set out in Article 65 paragraph 7, of the Race Relations (Northern Ireland) Order 1997 to extend the time for lodging the originating applications. Accordingly, the tribunal concludes that it does have jurisdiction to entertain both claimants' complaints as submitted in their originating applications lodged with the tribunal on 9 December 2003.

Chairman:

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

Date decision recorded in register and issued to parties: