Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 102/07

CLAIMANT: Kevin McKenna

RESPONDENT: The Royal Group of Hospitals and Dental Hospital Health and Social Services Trust

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claim for unfair dismissal is out of time and it was reasonably practicable for the claimant to lodge the claim within time. The claim is therefore dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mrs P Smyth

Appearances:

The claimant appeared in person.

The respondent was represented by Mr K Harkin, of Directorate of Legal Services, Central Services Agency.

1. The issue to be determined by the tribunal is:-

"Whether the tribunal has jurisdiction to entertain the claimant's complaint in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his complaint."

2. The tribunal heard evidence from the claimant, and considered submissions from both the claimant and the respondent's representative. The tribunal finds the following facts proved on a balance of probabilities:-

(2.1) The claimant was employed by the respondent as a Courier/Van Driver from 1 June 1990 until his dismissal on 25 May 2005. His claim for unfair dismissal was lodged on 22 November 2006.

(2.2) The tribunal accepts that at the date of his dismissal the claimant had family problems and was suffering from depression following a needle-stick injury.

(2.3) The claimant was represented by his shop steward at the disciplinary hearing which preceded his dismissal. His shop steward referred him to Mr Albert Mills at the trade union headquarters for advice. Mr Mills advised him of his right to bring a claim to the tribunal and also advised him about the three month time limit for bringing a claim.

(2.4) The claimant did not pursue a claim at that stage because he was confident that he would successfully appeal the decision to dismiss him from his employment, and because he was suffering from depression and had family problems.

(2.5) On 14 October 2005 the claimant was notified that his appeal was unsuccessful.

(2.6) Thereafter the claimant took no steps to pursue his claim. From October 2005 the claimant was living with his mother who had been diagnosed with cancer. His personal life continued to be very difficult, and he helped to care for his mother.

(2.7) In or about June 2006, the claimant met a person who worked in the Citizen's Advice Bureau. He discussed the circumstances giving rise to his dismissal, and was advised to make a claim to the industrial tribunal. The claimant lodged the claim in November 2006. No explanation was given for the delay between June and November 2006.

(2.8) The tribunal accepts the medical evidence provided that the claimant continues to suffer from depression and stress related injury even up to the present time.

3. The law

Relevant time limits

(3.1) The time limit for lodging a claim for unfair dismissal is set out in Article 145 of the Employment Rights (Northern Ireland) Order 1996. It provides that a tribunal shall not consider a complaint unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination. The relevant period for lodging this claim expired on 25 August 2005. In circumstances where the claim is lodged outside that period, but where the claimant had reasonable grounds for believing when the time limit expired that a dismissal or disciplinary procedure, whether statutory or otherwise, was being followed in respect of his dismissal, the relevant period for lodging the claim is automatically extended by three months.

The tribunal's discretion

(3.2) The tribunal has a discretion to extend the time limit. The test for extension of time has two limbs which must be satisfied. It is for the claimant to persuade the tribunal that it was not reasonably practicable to lodge the claim on time and then that the time taken to actually lodge the claim was reasonable.

(3.3) The question of what is or is not reasonably practicable is essentially one of fact for the tribunal to decide. As the Court of Appeal said in Schultz v Esso Petroleum Ltd [1999] IRLR 488 it is necessary to answer the question "against the background of the surrounding circumstances and the aim to be achieved".

4. The tribunal's conclusion

(4.1) The purpose of time limits is to ensure that claims are brought promptly. The tribunal accepts that at the date of his dismissal and thereafter the claimant had serious family problems and suffered from depression. However, he was able to seek advice from Mr Mills, his trade union representative, and that advice included information about the time limits for bringing a claim to the industrial tribunal.

(4.2) Furthermore, the claimant was able to pursue an appeal from the decision to dismiss him in October 2005. There is no evidence that his medical condition deteriorated thereafter.

(4.3) The tribunal is satisfied that the decision to lodge a claim was prompted by a meeting with a person from Citizens Advice Bureau in June 2006. However, despite the advice he received, the claimant delayed until November 2006 before actually lodging his claim. There is no explanation for that period of delay. Nor is there any evidence that the claimant's medical condition changed in any way.

(4.4) In those circumstances, whilst the tribunal is sympathetic to the claimant's personal situation, it is satisfied that it was reasonably practicable for the claimant to have presented his claim within the specified time limit.

(4.5) Accordingly, the tribunal does not have jurisdiction to hear the claimant's claim and it is dismissed.

Chairman:

Date and place of hearing: 18 May 2007, Belfast

Date decision recorded in register and issued to parties: