Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2006/852_06.html
Cite as: [2006] NIIT 852_06, [2006] NIIT 852_6

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THE INDUSTRIAL TRIBUNALS

CASE REF: 852/06

CLAIMANT: PAUL RICHARD WILLIAMS

RESPONDENT: TFR FACILITIES LTD

DECISION ON A PRE HEARING REVIEW

The decision of the tribunal is that:-

(a) The claimant was an employee of the respondent within the terms of Article 3 of The Employment Rights (Northern Ireland) Order 1996.

(b) It was reasonably practicable for the claimant to present his claim within the relevant time limit for presentation of the claim. The claimant did not do so. Accordingly, the tribunal does not have jurisdiction to entertain the claim.

Constitution of Tribunal:

Chairman: Mr Travers sitting alone

Appearances:

The claimant appeared in person

The respondent was represented by Mr Fintan Canavan, Solicitor of Jones & Co.

REASONS

ISSUES

The case was listed for a pre hearing review to deal with two issues.

• Whether the tribunal has jurisdiction to entertain the claimant's complaint in view of the provisions of article 55 of The Employment Rights (Northern Ireland) Order 1996 in relation to the time limit for presenting the claim.

• Whether the tribunal has jurisdiction to entertain the claimant's complaint of unauthorised deduction of wages in view of the provisions of Article 3 of The Employment Rights (Northern Ireland) Order 1996 with regard to the definition of "worker"/ "employer"/ "employment".

At the outset of the hearing, the respondent's representative conceded that the claimant was an employee of the respondent within the terms of Article 3 of the Employment Rights (Northern Ireland) Order 1996.

Consequently, the tribunal received evidence and heard detailed argument only on the issue of the time limit for presentation of the claim.

FACTS

The claimant was employed by the respondent from 25/4/05 until he resigned his position on 08/08/05. The respondent is a company based in Northern Ireland. The claimant lives in the North East of England and under his terms of employment he was to continue to be based there.

At no time has the respondent made any payments of salary to the claimant.

Until the morning of the pre-hearing review, the respondent maintained that the claimant had no entitlement to be paid because he was not an employee of the respondent. In the response form and in all correspondence, the respondent had repeated the assertion that the claimant had never been an employee. In essence, the case then advanced by the respondent was that the claimant had been offered employment by an employee of the respondent, in excess of that employee's authority.

The first written statement of grievance sent by the claimant to the respondent was dated 10/06/05. There followed a series of letters written by the claimant to the respondent concerning the respondent's failure to pay him. These letters included one dated 23/06/05 written by a firm of solicitors instructed by the claimant. The correspondence culminated in the claimant's letter of resignation dated 08/08/06.

The claimant had been provided by the respondent with a laptop computer and a company van. Following his resignation, the claimant was asked by the respondent to return the laptop by post and to provide a time and date for the company to collect the van.

The claimant returned the laptop but, for reasons which have not been adequately explained to the tribunal, no straightforward arrangement was made as to the time and place when the respondent could collect the van.

The van remained in England until September 2006. It was under the control of the claimant and in a place of storage chosen by him. At that time North Yorkshire police took the van into police storage and it has since been returned to the respondent.

The claim form was not presented to the tribunal until 27/06/06. This was around 10½ months after the claimant's resignation.

When he gave evidence, the claimant agreed that at no point was he unaware of his legal rights during the 10½ month delay between his resignation and the presentation of the claim. The claimant acknowledged that he knew of the 3 month primary limitation period for presenting his claim. He also said that he had had the opportunity to take legal advice.

The claimant said that the reason why he had delayed making the claim was because he and his family had suffered harassment and threats of violence from Mr Peter Hamill. The claimant describes Mr Hamill as the owner of the respondent company.

Mr Canavan, representing the respondent, forcefully rejected the suggestion that Mr Hamill has engaged in misconduct. No evidence, however, was tendered on behalf of the respondent. Mr Hamill did not attend the tribunal.

The claimant and his partner Ms Freeman did give evidence and the claimant was cross-examined. The following conclusions are based on the evidence that was presented to the tribunal.

The failure of the claimant to make effective arrangements for the return of the company van provoked anger on Mr Hamill's part.

On 27/07/05 Mr Hamill spoke to the claimant on the telephone. He accused the claimant of theft of the van, and he demanded the return of it to the company. Mr Hamill's tone was heated, and in the course of the conversation he made a threat of violence against the claimant. North Yorkshire police were contacted by the claimant and he received an incident number. The incident report was not produced and it is unclear whether or not Mr Hamill was ever contacted by the police about the allegation. Certainly, Mr Hamill was not charged with a criminal offence in respect of the matter. The police advised the claimant and Ms Freeman that they would drive by the claimant's house regularly and that if the harassment continued the claimant and Ms Freeman should not hesitate to contact the police. In fact, the tribunal has not heard any evidence that prior to issue of the claim on 27^th June 2006, either the claimant or Ms Freeman personally contacted the police to complain about further threats.

Mr Hamill contacted the claimant by telephone on several occasions to try to secure the return of the van. At times Mr Hamill expressed himself in an intemperate way which was regarded as threatening by the claimant and Ms Freeman.

On 8^th May 2006, Mr Hamill called at the claimant's former home and the occupants gave him the claimant's current address. Mr Hamill called at the house but both the claimant and Ms Freeman were not at home. Mr Hamill left his business card. On that occasion there was no contact between Mr Hamill and either the claimant or Ms Freeman. The police were called by the occupants of the claimant's former home and a number of police cars attended the claimant's current address.

On 27^th June 2006, the claimant presented his claim to the tribunal. The reason he gave for presenting the claim on that date was that, "I considered that myself and family could no longer live with this constant threat and as such I commenced my employment tribunal case."

At no time has the claimant asked the police why they have not charged Mr Hamill with a criminal offence. The claimant has not sought an injunction against Mr Hamill.

At all relevant times, the claimant was aware that a desire to secure the return of the company van was the reason for Mr Hamill seeking contact with him. At no time did the claimant take a pro-active approach to returning the van to Mr Hamill, nor did the claimant seek to assert any legal entitlement to retain the van himself.

The claimant seeks to rely upon an allegation relating to a telephone call on 18^th September 2006. It is unnecessary for the tribunal to consider this allegation, as it is not relevant to the issue of whether or not it was reasonably practicable for the claimant to present his claim prior to 27^th June 2006.

LAW

When there is an allegation of a series of unauthorised deductions of wages, any complaint to the tribunal must be presented within three months of the last in the series of deductions - Article 55 of The Employment Rights (Northern Ireland) Order 1996.

The three month time limit may be extended to six months if the complainant has sent a written statement of grievance to the employer within the original three month time limit – Regulation 15 of The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

The original three month time limit may be extended if the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the three month period. In that event, the complaint may be considered if it is presented within such further period as the tribunal considers reasonable – Article 55 of The Employment Rights (Northern Ireland) Order 1996.

The Court of Appeal of England and Wales considered the question of reasonable practicability in the case of Wall's Meat Co. Ltd v Khan [1978] IRLR 499. Brandon LJ at page 503 offered the following guidance:

"The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him."

The question was considered further by May LJ in Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 at page 125:

"to construe the words 'reasonably practicable' as the equivalent of 'reasonable' is to take a view too favourable to the employee. On the other hand 'reasonably practicable' means more than merely what is reasonably capable physically of being done… Perhaps to read the word 'practicable' as the equivalent of 'feasible' …and to ask colloquially and untrammeled by too much legal logic – 'was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?' – is the best approach to the correct application of the relevant subsection."

CONCLUSION

The tribunal adopts the date of the claimant's resignation as marking the last in the series of alleged unauthorized deductions of wages. The primary limitation period therefore expired on 7^th November 2005. The tribunal accepts that the claimant set out his complaint in writing prior to 7^th November 2005, and so he was entitled to a 3 month extension of time for presentation of his complaint. Accordingly, 7^th February 2006 was the last day on which, as of right, he could present his claim to the tribunal.

The claim was in fact presented on 27^th June 2006. Consequently the claimant has requested that the tribunal exercise it's discretion to extend the time for presentation of the claim from 7^th November 2005 to 27^thJune 2006.

Pursuant to Article 55 of The Employment (Northern Ireland) Order 1996, the tribunal has therefore proceeded to consider the following questions:- (a) was it reasonably practicable for the claimant to present his claim on or before 7^th November 2005? If it was not reasonably practicable, (b) is an extension of time to 27^th June 2006 reasonable?

The tribunal finds that it was reasonably practicable for the claimant to present his claim by 7^th November 2005, and so it is not necessary to go on and answer the question posed at paragraph 30(b) above. The reasons for the decision are set out below.

At no point was the claimant unaware of his legal rights. He knew of the three month primary limitation period for presentation of a claim, and he had taken legal advice. As early as 23^rd June 2005, a firm of solicitors based in England called "The Employment Law Practice" wrote to the respondent on the claimant's behalf. No issue arises in this case as to a lack of awareness of the law or any material facts. Well before 7^th November 2005, the claimant possessed all the knowledge he needed for presentation of his claim.

In considering the relevance of the alleged harassment and threats, the tribunal has asked itself if it was "reasonably feasible" [per May LJ] for the claimant to present his claim in time? Did the alleged harassment and threats represent an "impediment which reasonably prevents, or interferes with, or inhibits" [per Brandon LJ] the presentation of the claim?

The tribunal is firmly of the view that, despite the conduct alleged by the claimant against Mr Peter Hamill, it was reasonably practicable for the claimant to lodge his claim in time.

No clear explanation has been offered by the claimant as to precisely how the practicability of presenting the claim in time was affected by Mr Hamill's conduct. There was no apparent change in circumstances between 7^th November 2005, when the claimant says that it was not reasonably practicable for him to present his claim, and 27^th June 2006 when he did find it reasonably practicable to present his claim.

On the claimant's account, the only change that the tribunal can detect is that the negative effects of Mr Hamill's conduct entered more deeply into the lives of the claimant and Ms Freeman. This does not, however, assist the claimant in satisfying the tribunal that it was not reasonably practicable for him to present his claim prior to 7^th November 2005.

After the telephone call from Mr Hamill on 27^th July 2005, the claimant was given an incident number by the North Yorkshire Police. The claimant and Ms Freeman were told to contact the police if the harassment continued. In fact, the next complaint in respect of which the tribunal has been referred to a police incident number, was the occasion when the occupants of the claimant's former house called the police in May 2006. It appears that any unpleasant phone calls received by the claimant and Ms Freeman from Mr Hamill between 28^th July and 7^th November 2005 were not of such a degree of threat or harassment as to result in a further police incident number being given to the claimant.

The claimant was aware that the intemperate telephone calls made by Mr Hamill were driven by Mr Hamill's desire to secure the return of the respondent's van. The claimant must have known that if the van was returned to the respondent the immediate excuse for Mr Hamill to contact the claimant would have been removed. The claimant has not asserted that he had a legal right to retain the van for any purpose. The tribunal notes that despite this, the claimant did not take a positive approach to notifying the respondent of a time when, and a place from where, the van could be collected.

In considering the request for an extension of time in this case, the tribunal does not have a broad discretion related to the merits of the claim. The issue for the tribunal is strictly one of reasonable practicability.

Regardless of how unpleasant Mr Hamill's manner might have been on the telephone, the calls of themselves did not affect the practicability of presenting the claim within time. The claimant's mental capacity to manage his affairs has never been in question.

The extension of time for presenting the claim is therefore refused.

Chairman:

Date and place of hearing: 17 November 2006, Belfast.

Date decision recorded in register and issued to parties: