Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 223/06

CLAIMANT: William Fegan

RESPONDENT: Extern Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claim for unfair dismissal has not been presented in time and that it was reasonably practicable for the claimant to have presented the claim within the time limits laid down in Article 145 of the Employment Rights (Northern Ireland) Order 1996. The claim for disability discrimination insofar as it relates to the decision to dismiss the claimant is out of time but in all the circumstances of the case the tribunal considers it just and equitable to extend the time for presenting the claim in accordance with Paragraph 3 of Schedule 3 to the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman (sitting alone): Mr S A Crothers

Appearances:

The claimant was represented by Miss S Greene of NIPSA.

The respondent was represented by Mr P Rodgers, Barrister-at-Law instructed by J Blair, Employment Law Solicitor.

1. The Tribunal heard evidence from the claimant and was presented with an agreed bundle of documents.
   
2. The issues before the tribunal were as follows:-
   

(i) Whether the claim for unfair dismissal was presented within 3 months of the effective date of termination, or 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 the period of 3 months.


(ii) Whether the claim for disability discrimination (insofar as it related to the decision to dismiss the claimant) was presented within time, and if not, whether it is just and equitable to extend the time for presenting the claim.

3. The tribunal, having analysed the evidence in relation to the issues set out above, made the following findings of fact:-

(i) The effective date of termination of the claimant's employment was 1st August 2005. He was represented by Sally Greene of NIPSA throughout the disciplinary process.


(ii) The claimant was dismissed with effect from 1^st August 2005 by letter from the respondent dated 1^st August 2005 and in correspondence to the respondent on 4 August 2005 he indicated his intention to appeal. This correspondence was acknowledged by the respondent on 15 August 2005. On 17 August 2005 the claimant replied to the respondent's correspondence expanding on his grounds for appeal. This correspondence was acknowledged by the respondent on 26 August 2005. A date for an appeal hearing was arranged for Monday 12 September 2005 but this date did not suit either the claimant or his representative. An appeal was eventually arranged for 27 October 2005.


(iii) After the appeal hearing on 27 October 2005 the claimant and his representative went to the Industrial Tribunal Office to find out what time the claimant had for lodging a claim. The Tribunal Office did not proffer any advice and the claimant and his representative then visited the offices of the Labour Relations Agency. The tribunal accepts the claimant's evidence that his understanding of that advice was that he had 3 months from the date of completion of the appeal process in which to present his application to the tribunal office.


(iv) The claimant received hand-delivered correspondence from the respondent dated 18 November 2005 confirming the disciplinary panel's decision to dismiss the claimant.


(v) Subsequent to receiving the appeal outcome correspondence, the claimant described himself as being in "two minds" as to whether to lodge proceedings and he consulted with his family and union representative regarding same. He had further meetings with his union representative Miss Greene in November/early December and January 2006. The claimant had decided to lodge a tribunal claim in late January 2006 but believed that he had up until 18 February 2006 to present his claim to the tribunal office. The claim alleging, inter alia, unfair dismissal and disability discrimination was presented to the tribunal office on 17 February 2006.


4. The tribunal heard submissions from both representatives which included reference to the Employment (Northern Ireland) Order, 2003, Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, and the tribunals jurisdiction under Article 145 (2) (a) and (b) of the Employment Rights (Northern Ireland) Order 1996.
   
5. The tribunal is satisfied that the relevant law in relation to the issues is governed by Article 145(2)(a) and (b) of the Employment Rights (Northern Ireland) Order 1996 in relation to the claim of unfair dismissal, and Paragraph 3 of Schedule 3 to the Disability Discrimination Act 1995, in relation to the claim of disability discrimination. The tribunal also had regard to the relevant paragraphs from Harvey on Industrial Relations at T186ff and, in relation to the unfair dismissal claim, to the leading case of Palmer and Saunders, v Southend-on-Sea Borough Council 1984 IRLR119 and the considerations outlined therein.
   
6. Having applied the relevant principles of law to the facts the tribunal concludes as follows:-

(i) The claim of unfair dismissal is out of time; and


(ii) It was reasonably practicable in the sense of being reasonably feasible for the claimant to have presented his claim to the Industrial Tribunal within 3 months from 1st August 2005

(iii) The claim of disability discrimination (insofar as it relates to the decision to dismiss the claimant) is also out of time but the tribunal considers it just and equitable to extend the time for presenting the claim in all the circumstances of the case.

The claim of unfair dismissal is therefore dismissed.

Chairman:

Date and place of hearing: 9 August 2006, Belfast

Date decision recorded in register and issued to parties: