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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hewitt v Charles Hurst Ltd [2007] NIIT 1574_05 (11 January 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/1574_05.html
Cite as: [2007] NIIT 1574_05, [2007] NIIT 1574_5
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1574/05
CLAIMANT: Frederick James Hewitt
RESPONDENT: Charles Hurst Limited
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the tribunal does not have jurisdiction to entertain the claimant's claim, as it was brought outside the time limit laid down for the commencement of such claims by Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).
Constitution of Tribunal: Mr Cross (sitting alone)
Appearances:
The Claimant did not attend but was represented by Mr G Kilpatrick, Solicitor, of Thompsons McClure Solicitors.
The Respondent did not attend but was represented by Mr P Bloch of the Engineering Employers Federation of Northern Ireland.
The Evidence
The tribunal heard evidence from the claimant and from Mr Paul Chesney of the respondent company.
The Tribunal's Finding of Facts
1 The claimant was the Used Car Sales Manager of the respondent.
2 During the summer of 2005 the respondent declared that the claimant's job was no longer required and that he would be made redundant.
3 On 12 August 2005 the claimant attended a meeting with his line manager Mr Paul Chesney. At that meeting the claimant was told that he was being made redundant and that his effective date of termination was to be that day, 12 August. He was told
that he did not have to work out his period of notice but would receive payment in lieu. Furthermore he could retain the use of his company car and fuel entitlement for the period of three months until 11 November 2005.
4 This interview was followed up by a letter from the respondent to the claimant of 17 August which set out the above facts and gave the claimant the right of appeal. The letter recorded that the effective date of redundancy was 12 August 2005. There was no mention in this letter of the use of the car for three months.
5 The claimant duly received his three months pay and redundancy payment at the end of August 2005. He continued to use the car until he returned it to the respondents on 11 November.
6 The claimant submitted a claim for unfair dismissal which was received by the Office of the Industrial Tribunals and the Fair Employment Tribunal on 16 November 2005. In his claim form the claimant stated that his employment ended on 12 August 2005.
7 Under the terms of his Contract of Employment the claimant was allocated a company car as part of his benefits. The conditions applicable to the use of the car included a term, that the respondent was entitled to withdraw the employee's right to use a car if the contract of employment was terminated by the respondent without the employee being required to work out his notice.
The Legal Position
8 Article 145(2) of the Order states as follows “Subject to paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal –
(a) before the end of the period of three months beginning with the effective date of termination”
Paragraph 3 is not relevant to this case. The Article also gives the tribunal discretion to extend the three month period in certain circumstances, again not relevant to this case.
9 The question to be decided by the tribunal is whether this claimant presented his complaint to the tribunal within the time limit, bearing in mind that the date of the presentation is the date that the complaint is received by the tribunal office.
The Arguments of the Parties
10. The claimant contended that his effective date of termination was the date that he returned the company car to the respondent. Until that date he was still an employee of the respondent, although with no obligation to work. The fact that the respondent had the right to take away the car at any time during the notice period, which right was not invoked, shows, in the claimant's submission, that there were ongoing rights between the parties of a contractual nature which prevented time from starting to run until the 11 November 2005 when the car was returned.
11. The respondent argued that the letter which confirmed the verbal dismissal was quite clear in stating that the effective date of termination was the date of the dismissal meeting, namely 12 August 2005. The fact that the respondent allowed the claimant to retain the use of the car and fuel facility was to honour what had been agreed between
the parties, although the respondent was aware that this right could have been withdrawn. The fact that the respondent allowed this right to continue should not be held against the respondent, which had acted reasonably in permitting the arrangement to continue, for the sole benefit of the claimant.
Decision
12. The tribunal finds that the claimant was dismissed on the 12 August 2005 and that was the effective date of termination. He was paid all his notice pay in advance and was told that he was not required to work out his notice. The respondent, although it may not have been legally obliged to, decided to honour its contract in providing a car and fuel for the claimant during the next three months. This was more economical for the respondent than attempting to calculate a payment to represent the value of the use of the car and fuel over this period. There was no other link between the parties during the three month period, until the final handing back of the car. The tribunal hold, that the continued use of the car by the claimant, has no effect on the effective date of termination. In the view of the tribunal it is akin to an employer allowing a dismissed employee to enjoy the benefit of medical health insurance, or the membership of a health club, until the next renewal of the premium, neither of which arrangements could have an impact on the effective date of the termination of someone's employment.
13. As the effective date of termination is 12 August 2005 and the claimant's application to the tribunal was not received by the tribunal until 16 November 2005, the tribunal has no jurisdiction to entertain the claimant's complaint.
Chairman:
Date and place of hearing: 5 December 2006, Belfast.
Date decision recorded in register and issued to parties: