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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Martins & Ors v Atlanco Ltd [2005] NIIT 759_04 (30 September 2005)
URL: http://www.bailii.org/nie/cases/NIIT/2005/759_04.html
Cite as: [2005] NIIT 759_4, [2005] NIIT 759_04
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- The claimants presented originating complaints that during their employment with the respondent as production workers they had been subjected to racial discrimination, unlawful deductions from wages and breach of contract in the termination of their employment by the respondent in August 2003. The respondent denied that the first named, second named or fourth named claimants were dismissed from their employment, subjected to any unlawful deductions from wages, breach of contract or racial discrimination and in any event that their applications had been lodged out of time. The respondent alleged that the third named claimant had been lawfully dismissed from her employment and denied the allegations of racial discrimination, breach of contract or unlawful deductions from wages. Further the respondent alleged that the tribunal had no jurisdiction to consider the third named claimant's complaint as it had been lodged outside the time limits for lodging such applications.
- On 17 November 2004 a tribunal determined, after hearing from all the parties, that while the applications had been made outside the time limits prescribed by the Race Relations (Northern Ireland) Order 1997 the tribunal was satisfied in the circumstances of these cases that it was appropriate to exercise its discretion under the provisions of Article 65(7) of that Order. Accordingly, the complaints of racial discrimination will be heard at a later date.
- At the outset of this hearing the tribunal drew to the attention of the parties that the notice of hearing had only referred to the issue to be determined as the tribunal's jurisdiction to hear the complaints in respect of unlawful deduction of wages in light of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996. It was clear to the tribunal that there was also the issue of the tribunal's jurisdiction to determine any breach of contract claim in light of the provisions of Article 7 of the Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order 1994. Copies of the relevant legal provisions were provided to the claimants and an opportunity given for the claimants present to satisfy themselves that the jurisdictional issues were essentially the same. The parties agreed that they were content to have the notice of hearing amended to include reference to Article 7 of the Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order 1994.
- The essential issue for this tribunal therefore is to determine whether the tribunal was satisfied that it was not reasonably practicable for the complaints of breach of contract and unlawful deductions from wages to be presented within three months from the date of payment of the wages from which the deduction was made, or from the last day of the claimants employment with the respondent. Then, if that question was determined in favour of the claimants, the tribunal was required to consider whether the complaint was presented within a reasonable further period in light of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 and Article 7 of the Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order 1994.
- The first, second and fourth named claimants all gave oral evidence. The tribunal also gave consideration to the originating applications, the respondent's notice of appearances, the various documents provided by the claimants at hearing which were numbered as A1 to A5 and F1 to F7. The tribunal having considered all the evidence, both oral and documentary, found the following facts:
- Mr Cole submitted on behalf of the respondent, that all the claimants had lodged their applications at least seven months or more after they accepted that their contracts came to an end. It was clear that some of them indicated at an early stage in August 2003 that they would consider legal proceedings. The respondent is of the belief that by November 2003 the claimants should have addressed the issue of legal proceedings given the start of the Community Forum group and the conversation that the fourth named claimant had with a solicitor. The respondent believes if the claimants were so busy at work that they couldn't find time to see a solicitor, they at least could have afforded to make an enquiry with a solicitor. The respondent suggests that it was reasonably feasible for the claimants to approach, if not a solicitor then a legal advice centre or the Equality Commission itself. Ignorance of the law on time limits is not a valid defence to lateness of lodging an application or legal proceedings. All claimants, from this jurisdiction or from outside this jurisdiction, must have the same rules applied to them in respect of delay. The respondent believes that at all time it was reasonably feasible for the claimants either as an individual or as a group to lodge their proceedings or approach a relevant legal adviser at any time from the beginning of August until 22 December 2003. The tribunal should therefore find the applications in respect of the alleged unlawful deductions from wages and breach of contract were lodged out of time unreasonably and no extension of time should be given with regard to these heads of claim.
- The claimants made no submissions.
- The tribunal considered the information given orally and in writing by the parties. While the parties did not refer or identify to the tribunal any specific legal authorities, the tribunal considered the legal authority of Dedman -v- British Building and Engineering Applications Ltd (1974) 1 All ER 520 and Palmer and Saunders -v- Southend-on-Sea Borough Council [1984] IRLR 119, London International College Ltd -v- Sen [1993] IRLR 333 and Marks and Spencer PLC -v- Sabrina Williams-Ryan [2005] EWCA Civ 470. This tribunal agrees with the respondent
- The case law detailed above has identified the relevant legal principles that apply to the equivalent and identical provision as Article 55 of the Employment Rights (Northern Ireland) Order 1996 or Article 7 of the Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order 1994. This was not a case where it could be said that the respondent had misled or deceived the claimants as to the time limits relevant to this jurisdiction. However, this tribunal was satisfied that three of the four claimants were relying heavily on the actions of the first named claimant given that he appeared to have a better understanding and fluency of the English language than any of the other claimants. Indeed in the case of the second named claimant the tribunal was satisfied that due to his total lack of English he was totally reliant on the first named claimant, who was also his son, to assist him in pursuing his lawful entitlements, as he perceived them.
- The Dedman decision could be said to establish that Article 55 (4) and its equivalent in the 1994 Order should be given a liberal interpretation in favour of the employee (see Palmer at page 381). Regard is to be had to what if anything the employee knew about the right to complain to an industrial tribunal and of the time limit for making such a complaint. This tribunal considered the guidance given by Brandon L J in Walls Meat Co Ltd –v- Khan [1979] ICR 52 at page 61. In this case the tribunal was satisfied that the main reason for the delay by the claimants in submitting their applications to the tribunal was that they were unaware of the existence of the role of the tribunal as the appropriate venue for employment disputes. They believed that the venue would be a court, as in Portugal and had no knowledge of the time limit that applied, wrongfully believing that the time limit was the same as in Portugal, namely six years. The tribunal did not consider that these beliefs were unreasonable in the circumstances and therefore was satisfied that it was not reasonably practicable for the claimants to comply with a time limit of which they are reasonably ignorant. The tribunal was satisfied that it was not reasonably practicable for the complaints of breach of contract and unlawful deductions from wages to be presented within three months from the date of payment of the wages from which the deduction was made, or from the last day of the claimant's employment with the respondent.
- The tribunal then considered whether the complaint was presented within a reasonable further period. All of the claimants found alternative employment in this jurisdiction shortly after the termination of employment with the respondent. They were working a variety of shifts and like many new employees felt vulnerable to dismissal if they missed work. The tribunal considered that the claimant's work commitments and the language difficulty circumscribed the opportunities for the claimants to ascertain their rights in this jurisdiction once it was clear from the end of September 2003 that no payment was forthcoming from the respondent. The cultural background of the claimants appeared to this tribunal to be a major factor in determining the way the claimants proceeded to exercise their rights. The tribunal considered the actions of the claimants who appeared personally at hearing and the evidence they gave on their own behalf. The tribunal considered it is clear from the correspondence from the Multi-Cultural Resource Centre that the person assisting the claimants within that organisation appeared to be unaware of the time limits prescribed for such cases. Accordingly, it appears that until the claimants met the Equality Commission they were unaware of the prescribed time limits for the submission of these applications. The applications were submitted within six weeks approximately of the first meeting with the Equality Commission. The tribunal was satisfied that once the claimants were made aware of the time limits and the appropriate venue for resolution of their dispute with the respondent their applications were presented to the tribunal within a reasonable period in the circumstances of this case.
- The third named claimant did not appear at hearing, nor did any of the claimants advise as to any particular circumstance that differentiated her situation from their own. It is clear from her originating complaint that at one stage she had returned to Portugal. It also appears that the claimants had been unable to contact her with regard to this date of hearing. It is clear that the claimants were acting as a group from August to March 2003 and accordingly the tribunal can see no reason to distinguish, at this stage of the proceedings, the third named claimant's situation from that of the other claimants. Accordingly the tribunal is satisfied that her application was presented to the tribunal within a reasonable period once she became aware, like the others in February 2003, of the relevant venue for the resolution of her dispute with the respondent. Accordingly, the tribunal has determined that the tribunal does have jurisdiction to entertain the claimants' claims.
CASE REF: 759/04
760/04
761/04
762/04
CLAIMANTS: Gilberto Manuel Martins
Anibal Da Silva Martins
Maria Jose Barus Da Silvas
Joao Carlos Silva Fonseca
RESPONDENT: Atlanco Ltd
The decision of the tribunal is that the tribunal does have jurisdiction to hear the claimants' complaints in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 and Article 7 of the Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order 1994.
Constitution of Tribunal:
Chairman: Ms M Sheehan
Appearances:
The claimants were unrepresented and the third named claimant did not attend the hearing. The other claimants appeared at hearing.
The respondent was represented by Mr B. Cole, Solicitor from Diamond Herron Solicitors.
Mr Jonathon Bottomley was present as interpreter for the proceedings.
(a) The parties disputed the exact circumstances of termination of the first named claimant's employment with the respondent. This claimant had commenced employment on 18 April 2003 and understood that his contract was to last for six months until 18 October 2003. The claimant alleged that his employment was unlawfully terminated on 6 August 2003 and he received no payments in respect of monies owing after that date. The claimant raised the matter of outstanding monies on 14 August 2003 with the respondent at a meeting in Dublin. The Office of the Industrial Tribunals and Fair Employment Tribunal did not receive the first named claimant's complaint until 22 March 2004.
(b) The parties disputed the exact circumstances of termination of the second named claimant's employment with the respondent. This claimant had commenced employment with the respondent on 1 October 2002. The claimant alleged that his employment was unlawfully terminated on 13 August 2003 and he received no payments in respect of monies owing after that date prior to lodging his application with the industrial tribunals. This claimant also attended a meeting in Dublin with the respondent on 14 August 2003. The Office of the Industrial Tribunals and Fair Employment Tribunal did not receive the second named claimant's complaint until 22 March 2004.
(c) The exact circumstances of termination of the third named claimant's employment with the respondent were disputed by the parties. The claimant alleged that her employment was unlawfully terminated on 29 June 2003 and she received no payments in respect of monies owing after that date prior to lodging her application with the industrial tribunals. In October 2003 she visited offices of Atlanco in Portugal to raise these issues but was merely advised she had to raise matters with their office in Dublin. This claimant explained that she did not have adequate English to do so. The Office of the Industrial Tribunals and Fair Employment Tribunal did not receive the third named claimant's complaint until 22 March 2004.
(d) The exact circumstances of termination of the fourth named claimant's employment with the respondent were disputed by the parties. The claimant alleged that his employment was unlawfully terminated on 31 July 2003 and he received no payments in respect of monies owing after that date prior to lodging his application with the industrial tribunals. Further he believed that the rate of pay provided to him reflected a deduction made by the respondent in respect of flights arranged from Portugal to Ireland. This claimant had made his own flight arrangements to Northern Ireland and throughout his employment had raised this concern with employees of the respondent. The matter had not been clarified at the termination of his employment. This claimant also attended a meeting in Dublin with the respondent on 14 August 2003 where the question of outstanding monies was raised with the respondent. The Office of the Industrial Tribunals and Fair Employment Tribunal did not receive the fourth named claimant's complaint until 22 March 2004.
(e) It was common case between the parties that all the claimants were working for the respondent at premises owned by O'Kane Poultry in Ballymena at the date their employment terminated. In June 2003 the respondent issued at least two notices to staff in Ballymena advising that O'Kane Poultry intended to displace Atlanco Portuguese and Spanish staff with workers from Romania and the Ukraine. The 15 August 2003 was indicated to be Atlanco's last day on the Ballymena site. Atlanco employees were advised, "we will do everything possible to find alternative employment within the Atlanco group".
(f) The contractual documentation provided by the respondent to its employees was written in both English and Portuguese. Clause 2 provided amongst other details that "the length of the Assignment cannot be guaranteed and Atlanco may instruct the Operative to end the Assignment at any time". Assignment is defined in the document as the "duration of our employment with Atlanco's Client" and "Operative" referred to the particular employee identified on the document. Clause 8 provided that final settlement of an operative account would be made on the 20th of the month following completion of the assignment. Clause 13 provides that the document is to be governed by and construed in accordance with English Law.
(g) The respondent's representative, namely Mr P Lyons, at the meeting on 14 August 2003 indicated that he required some further time before he could address the issues raised with him. The first named claimant, who appeared to the tribunal to be the only claimant who could speak and read in English, had advised Mr P Lyons that if he heard nothing he would see him in court.
(h) The ex-employees of the respondent based in Ballymena had clearly determined to act as a group in an effort to resolve the financial matters they considered outstanding on the termination of their employment with the respondent. Many of the employees had little or no English, including two of the four claimants before the tribunal on the day of hearing. The fourth named claimant appeared to this tribunal to have limited understanding of the English language, which was in excess of his understanding in August 2003.
(i) The reason for the delay in submitting the applications to the tribunal arose from a belief that the law in the EEC was the same throughout the fifteen member states, as it then was. The tribunal found no reason to doubt the claimant's assertion that in Portugal there was a six-year timescale to initiate court proceedings for complaints such as the claimants were bringing forward in March 2004. The claimants, who appeared at hearing, were all in alternative employment in Northern Ireland by 18 August 2003. They would lose pay if absent from work and felt vulnerable to dismissal if they missed work. The claimants who appeared at hearing were anxious to work as many hours as were offered to them by their employer. Up to the end of September 2003 the claimants were hoping that the respondent would resolve the outstanding monies discussed with Mr Lyons on 14 August 2003. The variety of shifts worked by all the ex-employees created difficulties in arranging meetings which all could attend with a view to gaining a consensus amongst them as to the appropriate way to progress matters. The need for a consensus between the respondent's ex-employees from Portugal would appear related to the Portuguese culture and way of living.
(j) The establishment of the Ballymena Community Forum for Racial Harmony occurred at the end of November 2003. The first meeting essentially was about the election of office holders and the funding of the group. In January 2004 the first named claimant mentioned to another member of the Forum his difficulties with the respondent. As a result of that discussion he was put in contact with a member of the Multi Cultural Resource Centre Northern Ireland in February 2004. Neither of these contacts had any knowledge or experience of employment law but assisted the claimant and others in preparing statements of events and arranged a meeting for them with the Equality Commission. While this tribunal did not hear any evidence as to the arrangements involved in arranging the meeting with the Equality Commission it is clear from an earlier decision of the tribunal issued on 10 February 2005 that this meeting took place in February 2004 after several attempts to arrange the meeting.
(k) The fourth named claimant in or about the end of October 2003 and November 2004 mentioned brief details of his wages and contract dispute to a solicitor in Ballymena, while there with a colleague who had suffered an industrial injury during his employment. He was advised that employment law was not the field of expertise of that solicitor. Although the name of a solicitor firm was pointed out to the fourth named claimant in the yellow pages as a firm involved in such areas of law he did not pass this information to any of the other claimants. At that time he had little money and did not feel confident in his English to try and explain these matters to a lawyer on the telephone. No one mentioned to him the three-month time limit that applied generally in employment disputes. He had mentioned the solicitor's comments to his father, who was also a member with the first named claimant of the Ballymena Community Forum and assumed that the information had been passed on.
that the same rules must apply to all claimants. It is clear from these authorities for the tribunal to consider as to when it was reasonably practicable or feasible for the claimants to lodge their applications and require an examination of the circumstances of the claimants failure to lodge until the date the application is received in the Office of the Industrial Tribunals and Fair Employment Tribunal.
Chairman:
Date and place of hearing: 30 September 2005, Belfast.
Date decision recorded in register and issued to parties: