Industrial Tribunals Northern Ireland Decisions

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Cite as: [2006] NIIT 1002_05, [2006] NIIT 1002_5

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1002/05

CLAIMANT: Andrew Pollock

RESPONDENTS: 1. Bernard Coey

2. Flush Mushroom Farm

DECISION

The tribunal has concluded that it does not have jurisdiction to consider the claimant's complaints in this case because they were presented out of time.

Constitution of Tribunal:

Chairman (sitting alone): Mr T Browne

Appearances:

The claimant was represented by Mr Heaney, Barrister-at-Law, instructed by Maurice R J Kempton.

The respondents were represented by Miss MacRandal, Solicitor, of O'Toole & MacRandal, Solicitors.

Issues

The tribunal had to decide whether it had jurisdiction to consider the claimant's complaints, having regard to the timeliness of their presentation.

Findings Of fact

The tribunal found the following facts from the material before it and from the submissions of the parties' representatives.

The claimant worked for the second-named respondent as a labourer, commencing his employment in April 2001.

On 16 March 2005 he was at work when there was an argument between him and the first-named respondent, Mr Coey, who ran the business apparently as its owner.

The argument arose from an apparent misunderstanding or failure by the claimant to carry out an instruction as to where he should have directed the first-named respondent's migrant workers to go.

The claimant and the first-named respondent dispute what was said, but the result was that the claimant left the premises.

He returned on 18 March 2005, to collect his pay. It is his case that he had been summarily dismissed by the first-named respondent on 16 March 2005 and was told to come back on 18 March to collect his wages.

It was the first-named respondent's case that the claimant had stormed off on 16 March 2005 but returned on 18 March 2005 to collect his weekly pay as usual.

In any event, the first-named respondent told the claimant on 18 March 2005 that his job was still open, but the claimant did not take up the offer.

The tribunal had particular regard to the IT1 claim form, received by the Office of Industrial Tribunals on 4 July 2005. The claimant at Part 6.1 of that form asserted that his employment had ended on 16 March 2005.

It also is apparent from the claim form to the industrial tribunal and from preceding correspondence between the claimant and the respondents that he did not take up the offer of a return to work because he felt that the way the first-named respondent had spoken to him on 16 March 2005 had been 'the final insult' and that 'the employment situation had been damaged beyond repair'.

Following 18 March 2005 the claimant sent various correspondences to the respondents, raising, in terms, a case of unfair dismissal.

In addition to his upset at the incident of 16 March 2005, he raised a continued failure by the respondents as to holiday entitlement and holiday pay, as well as raising issues about minimum wage payments.

The tribunal also found that the claimant in his letter to the respondents on 31 March 2005 told them that unless he received a response from them within 10 days, he would make an application to an Industrial Tribunal. The tribunal also noted in that letter that the claimant sought his P45 and payment in lieu of notice.

It was also found by the tribunal from correspondence by the respondents dated 5 April 2005 that the claimant received his P45 in that letter, which the tribunal found to be in compliance with the claimant's request of 31 March 2005.

The respondents also make it clear in that letter of 5 April 2005 that whilst they viewed the employment as ended, it had been terminated by the claimant but that the job was still available to the claimant until 15 April 2005.

This prompted the claimant to write in response, setting out what would appear to be his terms of a new contract to do the same job, to which the claimants did not respond.

The law and conclusions

The law regarding the presentation of claims for unfair dismissal and unlawful deduction from wages is set out in Article 55 and 145 respectively of the Employment Rights (Northern Ireland) Order 1996.

The other, breach of contract claim, arises under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

Article 7 of that Order, in common with Article 55 and 145 of the 1996 Order, requires that an industrial tribunal 'shall not' entertain or consider a complaint under any of those Articles unless it is presented within three months of the effective date of termination of the contract or of the payment of the wages from which an alleged unlawful deduction is made.

The test to be applied by the tribunal in all of the complaints in this case as to whether any such period can be extended is whether it is satisfied that it was not reasonably practicable for such complaint to be presented within the three months.

The respondents case is that the time limit was dictated by the three months commencing on Friday 18 March 2005, when the claimant failed to take up first-named respondent's offer of a return to work.

The claimant's case was that his employment had not terminated on that date, but on 15 April 2005, being the date expressed by the respondents in their letter of 5 April 2005.

Alternatively, the claimant argued that the presentation of the unfair dismissal claim was not reasonably practicable until July 2005 because the claimant was involved in correspondence with the respondents, and was receiving assistance in that regard from the Citizen's Advice Bureau.

Mr Heaney also argued that it was not reasonably practicable for the claimant to present his claim for holiday pay until he received the figures from the respondents. He did however concede a difficulty in that claim and asked for an extension of time.

The test of reasonable practicability is significantly more restrictive than that of 'just and equitable', which applies in other situations but not to these.

The tribunal had regard to all the circumstances in this case, notably to the extended offer of re-employment.

It is clear from the evidence however that the claimant regarded his employment as having terminated on 16 March 2005, when he left work after the argument with the first-named respondent. His view on that issue persisted in his claim.

It also was clear that he had been aware for some time before 16 March 2005 as to his holiday pay and minimum wage queries.

The tribunal was satisfied that both sides viewed the contract of employment as having ended at the latest on 18 March 2005. The claimant further requested and received his P45, and he also asked for payment in lieu of notice.

Whilst subsequent correspondence indicates a willingness to re-negotiate, neither side backed away from or denied the position in that correspondence that the employment had been terminated.

The tribunal finds that there was no obligation upon the respondents to make the offer to keep the claimant's job open for him. Other than as a gesture of goodwill, they were, in the opinion of the tribunal, entitled to regard the contract as discharged on 21 March 2005, by which date the claimant had not contacted first-named respondent on foot of the latter's offer to give the claimant a lift to work as usual.

The claimant had made it clear from the outset and throughout that he felt that he had been dismissed; he asked for his P45 and for payment in lieu of notice.

It also was the view of the tribunal that the letter of 31 March 2005 indicated a clear attitude from the claimant that, his contract of employment having ended, he was intending to recoup from the respondents monies which he claimed to be owed. His intention to move to industrial tribunal proceedings if he did not receive sufficient financial recompense was also made clear in that letter.

The tribunal concluded from the tenor and content of the claimant's correspondence that he regarded himself as having been (unfairly) dismissed on 16 March 2005 and that he from the outset had contemplated industrial proceedings under clearly-expressed heads of claim.

It was equally apparent to the tribunal from the tenor and content of correspondence of the respondent that they too were treating the contract of employment as having terminated (by the claimant's departure on 16 March 2005).

The tribunal in considering the provisions of the Employment Rights (Northern Ireland) Order 1996 as to unfair dismissal found that there is no provision in that legislation to cover a situation where both parties who view and, on the face of it are entitled to view, the contract of employment as having terminated and yet enter into negotiation for the employee to return to the same job.

The only provision covering such a situation arises under the provisions dealing with dismissal on the ground of redundancy.

Article 173 states

(1) Where –

(a) an employee's contract of employment is renewed or he is re-engaged under a new contract of employment in pursuance of an offer (whether in writing or not) made before the end of his employment under the previous contract, and

(b) the renewal or re-engagement takes effect immediately on, or after an interval of not more than four weeks after, the end of that employment, the employee shall not be regarded as dismissed by his employer by reason of the ending of his employment under the previous contract.

With reference to the provisions of Article 173 regarding redundancy dismissal, the tribunal found the absence of any such provision to dismissals on other grounds to be useful in the present case.

The tribunal viewed the deliberate omission by Parliament of such provision in those other dismissal situations as meaning that any future re-engagement or re-instatement therefore should be viewed as the start of an entirely new contract of employment.

The tribunal therefore finds that, whatever the reason for the termination of employment (determination of which is outside the scope of the present issues) any offer or negotiation of terms regarding the claimant coming back to work for the respondents ought, on the balance of probabilities, to be regarded and treated as parties negotiating a new and separate contract of employment.

The tribunal having concluded that the effective date of termination, at the latest, was 21 March 2005, the latest date for expiry of the three-month time limit was 21 June 2005.

Since the claim was not received in the Office of Tribunals until 4 July 2005, the tribunal then considered whether it was satisfied that there was any reason why it was not reasonably practicable for any of the complaints to be presented within the three months applying to each of them.

The tribunal concluded that there was no such reason either put to it or apparent from its own consideration of the evidence and the relevant legislation.

Whilst the claimant might well have been seeking guidance from the Citizen's Advice Bureau, and dealing with the respondents by letter, it was clear to the tribunal, that the claimant was well aware of industrial tribunal issues and that he was contemplating such action. Unfortunately, he does not appear to have addressed the issues regarding time-limits. The tribunal came to the view in this regard that the claimant was prepared to use the prospect of industrial tribunal proceedings as a lever to negotiate a new contract of employment without having sufficient regard to the statutory provisions as to the practicalities of bringing such proceedings.

There was no evidence before the tribunal that there was any practical impediment in the way of processing his claim, the absence of knowledge as to time limits seeming to the tribunal to be outside the scope of the requirement that it was not reasonably practicable to present a claim.

The tribunal therefore concluded that there was no ground to satisfy it that it was not reasonably practicable to bring these claims. Consequently, the tribunal has no jurisdiction to deal with any of them as they are out of time and must fail.

Chairman:

Date and place of hearing: 2 February 2006, Belfast

Date decision recorded in register and issued to parties: