Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 266/06

CLAIMANT: Barry Smyth

RESPONDENT: Beverly Lodge Private N Home

DECISION

The decision of the tribunal is that the tribunal has jurisdiction to entertain the claimant's complaint of unfair dismissal as it was presented within the extended period for presenting a complaint by virtue of Regulation 15 (1) and (3) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. The tribunal does not have jurisdiction to entertain the claimant's claims for notice and holiday pay as he did not comply with paragraph 6 Schedule 1 of the Employment (Northern Ireland) Order 2003.

Constitution of Tribunal:

Chairman: Ms J Knight (Chairman sitting alone)

Appearances:

The claimant was represented by Mr M McEvoy Barrister-at-Law instructed by John Ross & Son Solicitors.

The respondent was represented by Mr T Sheridan of Peninsula Business Services Limited.

1. The issues to be determined by the tribunal identified and agreed by the parties at the outset of the pre hearing review were:

a) whether the claimant had presented his claims of unfair dismissal, pay in lieu of notice and unpaid holiday pay within the time limits prescribed by the Employment Rights(Northern Ireland) Order 1996;

b) whether the claimant had complied with the statutory grievance procedure in respect of each of his complaints;

c) whether the time for presenting the claims was extended by virtue of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution Regulations (Northern Ireland) 2004; and if not,

d) whether it was not reasonably practicable for the complaints to be presented within the time limits prescribed by the 1996 Order.

2. The tribunal considered the originating claim, the respondent's response, correspondence between the claimant's solicitor and the tribunal office, correspondence between the parties and the submissions of the representatives of the parties.
3. The tribunal made the following findings of relevant fact:

a) The claimant was employed by the respondent as a Senior Care Assistant by the respondent from 2001. Following a serious allegation against the claimant, he alleged that he was forced to resign from his post by the respondent with effect from 30^th October 2005.

b) The claimant subsequently consulted his solicitors who wrote to the respondent by letter dated 22^nd November 2005 in the following terms:

"We are instructed on behalf of our above named client with regard to a claim for unfair dismissal.

It is clear from our instructions that our client's employment was effectively terminated on the 30^th of October following a meeting with Mrs Magowan and Charge Nurse Maguire.

We look forward to receiving your proposals to compensate our client within 7 days from the date hereof failing which our instructions are to lodge a claim to the employment tribunal without further reference to you."

c) The claimant's solicitor lodged an originating claim dated 20^th January 2006 which was received by the tribunal office on 23^rd January 2006. This complained that the claimant had been unfairly dismissed by the respondent and that the claimant was owed pay in lieu of notice and holiday pay. In answer to question 5.5 on the originating claim" have you put your complaint in writing to the respondent?", the claimant ticked yes and gave the date of the complaint as 22^nd November 2005.

d) On 6^th February 2006, after the end of the period of three months prescribed by the 1996 Order, the tribunal office wrote to the claimant's solicitor advising that the claim had not been accepted by a Chairman as it did not contain all the relevant information required by the Industrial Tribunal Rules of Procedure, namely the claimant's date of birth. This information had not been included on the form due to an oversight by the claimant's solicitor. This letter was not received by the claimant's solicitor until 1^st March 2006 due to the postal strike. The claim form was amended to include the claimant's date of birth and resubmitted by first class post and was received by the tribunal office on 2^nd March 2006. Mr Sheridan accepted that the claimant had no control over the timing of the letter from the tribunal office or the postal strike.

e) The claim form was accepted and a copy sent to the respondent. In its response, it was contended that the claimant's claim was not presented to the tribunal before the end of the period of three months beginning with the effective date of termination. Further, it was contended that the tribunal does not have jurisdiction to hear this claim as the claimant had not complied with the statutory dispute resolution procedures and that he had not raised a grievance with the respondent but had simply sought compensation.

4. Conclusions:

a) The accepted complaint was not presented to the industrial tribunal before the end of the period of three months beginning with the effective date of termination as prescribed by the 1996 Order.

b) However the chairman considered whether the relevant time limit for presenting the complaint was affected by the statutory dispute resolution procedures set out in the Employment (NI) Order 2003. Article 19 provides that in certain jurisdictions an employee may not present a complaint to the tribunal unless he has put his grievance in writing to the employer and has allowed not less than 28 days before presenting the complaint.

c) The chairman was satisfied and the parties agreed that the claimant's complaints of constructive unfair dismissal and for notice and holiday pay fell within a jurisdiction listed in Schedule 2 or 3 of the 2003 Order. The chairman then considered the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 which were made in exercise of powers pursuant to the 2003 Order. Under regulation 6 the claimant is required to comply with the standard grievance procedure.

d) Regulation 15 provides the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired, where either of the grievance procedures is the applicable statutory procedure and where the employee presents a complaint to the tribunal after the expiry of the time limit for presenting the complaint, having complied with paragraph 6 (which relates to the statement of grievance in the standard procedure) or 9 (which relates to the statement of grievance in the modified procedure) of Schedule 1 in relation to his grievance within that normal time limit.

e) Therefore the question arose as to whether the claimant had set out his grievance in writing and sent it to the respondent. It was the claimant's case from his originating claim and in submissions made by Counsel on his behalf, that the letter from the claimant's solicitor constituted a grievance about the complaints raised in the originating claim.

f) The chairman considered the decisions of the EAT as to what constitutes compliance with the statutory grievance procedure. A grievance need not be in any particular form and may be raised in solicitor's correspondence (Mark Warner v Aspland 2006 IRLR 87). The EAT held in the case of Canary Wharf Management v Edebi 2006 IRLR 416 that Step 1 of the standard procedure merely requires that there should be a statement of the grievance in writing sent to the employer. The only requirement is that the complaint to the employer must be essentially the same complaint as is subsequently advanced before the tribunal. The objective of the statute can be fairly met if the employer, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised. If the statement cannot in context fairly be read even in a non technical and unsophisticated way as raising the grievance which is the subject matter of the complaint, then the tribunal cannot hear the claim.

g) The chairman was satisfied that the letter from the claimant's solicitor did effectively comply with step 1 of the Standard Grievance procedure in relation to the complaint of unfair constructive dismissal. It refers specifically to the complaint of unfair dismissal later raised in the claimant's claim form and the chairman is satisfied when taking into account the context of the letter, the respondent would have appreciated that a complaint of unfair constructive dismissal was being made. Therefore the chairman was satisfied that the claimant had complied with Regulation 15(3) and that his complaint of unfair dismissal was presented within the extended time limit. Accordingly the chairman is satisfied that the tribunal has jurisdiction to consider the claimant's complaint of unfair dismissal.

h) However the letter does not mention anything about notice pay or outstanding holiday pay and the chairman is not satisfied that it is capable of being construed as raising a grievance in relation to these complaints which also appear in the originating claim. Therefore there is no extension of time under Regulation 15 for the presentation of the complaints in relation to these matters and the complaint has been presented outside the three month time limit for presenting these claims.

i) The chairman considers that these complaints were presented within a reasonable period after the end of the three month time limits prescribed by the 1996 Order and is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Following the reasoning of the EAT in Richardson v U Mole Ltd 2005 IRLR 668 the chairman is satisfied that the failure in this case to comply with Rule 1(4) was wholly immaterial since the date of birth of the claimant is not an issue and has no bearing on whether there has been a breach of contract or unlawful deduction from wages. The chairman was satisfied that it was not reasonably feasible for the claimant to correct the defect within the time limit for presenting these complaints due to factors beyond his or his solicitor's control. The chairman took into account that the claimant's solicitor re-submitted the originating claim on the same date as she received the correspondence from the tribunal office. However, the effect of concluding that the claimant had not complied with the requirement to make a statutory grievance in relation to his complaints of notice and holiday pay is that the tribunal does not have jurisdiction in any event to entertain the claimant's claim in relation to these complaints.

Chairman:

Date and place of hearing: 25^th August 2006, Belfast.

Date decision recorded in register and issued to parties: