Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 19/07

CLAIMANT: Roger William Brewster

RESPONDENT: Victim Support Northern Ireland

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal in conducting a Pre-Hearing Review in accordance with Rule 18 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 is that the claimant's employment terminated on 28 April 2006 and accordingly his application which was received on 27 October 2006 is in time and the tribunal has jurisdiction to entertain the claimant's claim in the light of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

Constitution of Tribunal:

Chairman: Ms F Oliver

Appearances:

The claimant was represented by Mrs Sally Greene of NIPSA.

The respondent was represented by Mr Tom Sheridan of Peninsula, Business Services Ltd.

Sources of Evidence

The tribunal heard evidence from the claimant.

The tribunal had the benefit of oral submissions from the claimant's representative and written submissions from the respondent's representatives.

Issues

The issue for the tribunal is whether the tribunal has jurisdiction to entertain the claimant's claim in view of the provisions of Article 145 (2) of the Employment Rights (Northern Ireland) Order 1996 and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 regarding the time limit for presenting the claim.

Analysis of the evidence

There was very little dispute between the parties on the relevant facts of this case. The issue was the correct interpretation of the law as it applied to the facts.

Findings of Facts

It was accepted by both parties that the claimant was dismissed on 28 April 2006, being the date on which he received the letter terminating his employment.

The claimant lodged his appeal against termination with the respondent on 3 May 2006.

For various reasons, which need not concern the tribunal at this stage, the appeal hearing did not take place until 29 September 2006.

The claimant presented his claim to the tribunal on 27 October 2006.

The outcome of the Appeal Hearing which confirmed the claimant's dismissal was sent to the claimant on 23 November 2006.

The Law

The relevant law in relation to this matter is Article 145 of the Employment Rights (Northern Ireland) Order 1996 (Article 145) which states as follows:

Complaints to industrial tribunal

145.—(1) A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) 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, or

and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (Regulation 15) which states as follows:

Extension of time limits

15.—(1) Where a complaint is presented to a tribunal under a jurisdiction listed in Schedule 2 or 3 or, as the case may be, under Article 38 of the Order of 1998, and –

(a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or

(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;

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.

(2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.

The respondent referred the tribunal to a number of cases dealing with the question as to whether it was reasonably practicable to present the claim in time but as will be apparent from the tribunal's reasons, the tribunal did not need to consider the question of reasonable practicality as the tribunal will find that the claim was presented in time.

The respondent referred in particular to the case of J. Theobald -v- The Royal Bank of Scotland [2007] UKEAT 0444-06-1001.

Application of the Law and Findings of fact to the Issues

In the normal course of events, if the claimant had not lodged an appeal with the respondent, he would have been required to present his claim on or before the 27 July 2006 in accordance with Article 145.

At the time when that time limit expired, that is the 27 July 2006, the claimant had, in accordance with Regulation 15, reasonable grounds for believing that a dismissal procedure was being followed because in fact he was in the middle of the appeal procedure and was awaiting an appeal hearing.

The normal time for presenting the claim is therefore extended for a period of three months beginning with the day after the day on which it would otherwise have expired. 28 July 2006 is the day after the day on which the normal time limit would have expired.

The time for lodging this claim is therefore extended to 27 October 2006, being three months from the 28 July 2006.

It follows therefore that as this claim was lodged on 27 October 2007, it was lodged in time.

The tribunal distinguishes this decision from the decision of J. Theobald -v- The Royal Bank of Scotland. In the Theobald case it is clear that the dismissal procedures had been completed just prior to the expiry of the normal time limits. In that case, the claimant was not able to benefit from Regulation 15 as the claimant presumably did not have reasonable grounds for believing that a dismissal procedure was being followed when the normal time limit expired. Indeed it is expressly accepted by the parties in that case that Regulation 15 did not apply.

The tribunal therefore finds that this claim has been presented in time.

Chairman:

Date and place of hearing: 30 April 2007, Belfast.

Date decision recorded in register and issued to parties: