Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 200/07

CLAIMANT: Kathryn Belch

RESPONDENT: Ards Development Bureau & Community Network

DECISION ON A PRE-HEARING REVIEW

The claim for unfair dismissal was presented on 16 January 2007, on which date it was seventeen days out of time. It was reasonably practicable for the Claimant to present the claim by 30 December 2006. Accordingly, pursuant to the provisions of Article 145(2) (a) of the Employment Rights (Northern Ireland) Order 1996, the Tribunal does not have jurisdiction to hear the complaint of unfair dismissal. The claim for unfair dismissal is thus dismissed.

The Claimant's claim for unauthorised deductions from wages, made in the same claim, will now be relisted for a Pre-Hearing Review on a determination of whether the Tribunal has jurisdiction to hear that claim, having regard to the provisions of Articles 55(2) and 55(4) of the Employment Rights (Northern Ireland) Order 1996.

Constitution of the Tribunal:

Chairman: Mr M G O'Brien

Appearances:

The Claimant appeared in person.

The Respondent did not appear and was not represented.

Sources of Evidence

The Claimant gave evidence.

Findings of Fact

1. By her claim, presented on 16 January 2007, the Claimant asserted she had been employed by the Respondent from 1 July 2001 until 30 September 2006, as an office and facilities manager. The Claimant alleged she had been unfairly dismissed on 30 September 2007. At section 5.5 of the claim, the Claimant asserted she had sent a complaint in writing to her employer after her dismissal. This complaint was made on 6 October 2006. At section 5.6 of the claim, the Claimant asserted she had waited 28 days before submitting her claim. At section 10 of the claim, the Claimant alleged that she was owed £1,734.92 in other payments due to her. These other payments are alleged pension shortfalls. The Claimant's claim was accepted by the Office of the Industrial Tribunals by letter dated 13 February 2007.
2. By its response to the claim, presented on 13 March 2007, the Respondent accepted the Claimant had been dismissed, and that the date she had indicated as the effective date of termination – 30 September 2006 – was correct. The reason for the dismissal is asserted to be redundancy. The response indicated the Claimant had a meeting with management on 1 September 2006, and was informed of forthcoming job opportunities within the Respondent's organisation. At section 3.6 of the response, the Respondent asserts that the Claimant was telephoned on 5 October 2006 to advise of these new job opportunities and immediately thereafter the Claimant was sent application forms. The response asserts the Claimant failed to apply for any of these posts. The response also accepted the Claimant presented a grievance about her dismissal on 6 October 2006. The response continues;

…Kathryn sent us a letter of grievance on 6^th October. Further letters were received and promptly responded to until our correspondence of 29^thNovember 2006 when, as advised by the Labour Relations Agency, we followed procedures and offered Kathryn a further formal opportunity to address her grievance to the Board accompanied by a friend or union representative. Kathryn did not respond.

3. Pursuant to Article 145 (2) (a) of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") a Claimant has three months from the effective date of termination to present a complaint to the Office of the Industrial Tribunals. Before the Tribunal, the Claimant accepted that her claim had not been presented within this statutory time limit, and that her claim was presented 17 days outside this statutory time period.
4. The Claimant was not provided with written particulars of her employment until or about 26 September 2006.
5. From the Claimant's uncontested evidence, the Tribunal finds that the effect of her redundancy induced a state of shock within the Claimant. The Claimant lost some 16 pounds in weight in the aftermath of the termination of her employment. The Claimant sent a written grievance to the Respondent by letter dated 6 October 2006, and this was responded to by letter dated 11 October 2006 from the Respondent. The Claimant did not dispute that she had received the Respondent's letter of 29 November 2006. The Claimant consulted a solicitor in November 2006. During a consultation with her solicitor, the Claimant broke down. At this time, the Claimant was worried about money, and was not sleeping. The Claimant also consulted a Citizens' Advice Bureau in October/November 2006. The Claimant's main concern in the period 30 September – 30 December 2006 was to get a new job. During that time she registered with employment agencies, which required her to travel into Belfast. She was also actively researching employment opportunities on the internet, and began working in temporary jobs. In these temporary employments, she was working hard to make a good impression. The Claimant's evenings were spent filling out application forms for new employment. The Claimant got a temporary job in mid-November 2006. She realised she had a possible claim against the Respondent when she saw it had advertised jobs in or about mid-November 2006. She amassed documentation relating to the Respondent's reduction of hours et cetera. The Claimant did not attend the meeting on 29 November 2006 because of her state of shock, and because she "could not get her head around" the Respondent's conduct in terminating her employment.
6. On 2 January 2007, the Claimant secured a temporary job with the Transport and General Workers Union. This employment was the turning point for the Claimant, and she stopped losing weight from this time onwards. She got advice from the TGWU, and thus decided to pursue her claim. In the period 2 January to 16 January 2007, the Claimant spoke to former colleagues and was amassing details of her former employment. Although she commenced filling out her claim form on 10 January 2007, the Claimant asserted that she was not strong enough to present her claim before 16 January 2007. The Claimant did not attend her doctor, and did not present to the Tribunal any medical evidence.

The Issue to be Decided

7. The parties were notified on 16 February 2007 that the issue to be decided at this Pre-Hearing Review was as follows;

"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 her complaint".

Applicable Law

8. Articles 33 and 34 of the 1996 Order provide an employee with the right to have provided to him/her a statement of employment particulars within two months of commencement of employment.
9. The applicable law in respect of unauthorised deductions from wages is provided by Part IV, Article 45 of the 1996 Order.
10. Pursuant to Article 55(2) of the 1996 Order, a complaint made pursuant to the provisions of Article 45 of the 1996 Order must be made before the end of the period of three months of the act complained of. Article 55(4) of the 1996 Order provides a Tribunal with a judicial discretion to extend time for such a complaint where it is satisfied that it was not "reasonably practicable" for the claim of unauthorised deductions to be presented within the statutory three month time period, and that the period from the end of the three months to the date of presentation is, of itself, "reasonable".
11. Rule 12(1) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 provides a chairman with the jurisdiction to hold a pre hearing review on his own initiative.
12. Article 126 of the 1996 Order provides an employee with the right not to be unfairly dismissed.
13. Article 145(1) of the 1996 Order provides that a complaint may be presented to an industrial tribunal against an employer by any person that she was unfairly dismissed by that employer.
14. Article 145(2) of the 1996 Order provides;

145 (2) - Subject to paragraph (3), and 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

(b) Within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

15. Articles 19(2) and (3) of the Employment (Northern Ireland) Order 2003 provide that an employee shall not present a complaint to a tribunal if the complaint is subject to the Statutory Grievance Procedure, and he has not put his grievance in writing and waited 28 days before presenting his claim to the Tribunal.
16. Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 provides circumstances in which the time limit for commencing proceedings will be extended. Regulation 15 (1) – (2) provides;

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 Decision of the Tribunal

17. The Tribunal wishes to emphasise that it has considered the assertions in the claim and the response, and the above findings of fact which are based on the Claimant's evidence.
18. Whilst it is outside the ambit of the issue to be decided at this Pre-Hearing Review, the Tribunal notes its dissatisfaction that the Respondent did not adhere to the legal obligation to provide to the Claimant a statement of written particulars of employment within two months of the start of her employment on 1 July 2001, pursuant to Articles 33-34 of the 1996 Order.
19. The Claimant's effective date of termination was 30 September 2006.
20. The Respondent replied to the Claimant's written grievance of 6 October 2006 by letter dated 11 October 2006. If there was any doubt about the finality of the grievance process, this is completely dispelled by the Respondent's letter of 29 November 2006. Therefore, the Tribunal determines that there is no basis upon which the Claimant could have considered that the grievance process was still operative or ongoing after 29 November 2006, pursuant to Regulation 15(2) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. Accordingly, there is no basis in law for the exercise of any extension of time pursuant to Regulation 15 (1) of those Regulations.
21. This takes the Tribunal to the application of the provisions of Article 145 (2) of the 1996 Order. The Claimant conceded that her claim was not presented in compliance with Article 145(2) (a) of the 1996 Order, and that it was presented seventeen days out of time.
22. Thus, the Claimant must seek to rely on the judicial discretion provided the Tribunal by the provisions of Article 145(2) (b) of the 1996 Order. That provision provides that the Tribunal must firstly satisfy itself that it was not "reasonably practicable" for the Claimant to have complied with the provisions of Article 145(2) (a) and then provides that it must further be satisfied that the period from the expiration of the three months to the date of the presentation of the claim is, in itself, "reasonable". Accordingly, there are two quite distinct tests to be applied by Article 145(2) (b) of the 1996 Order. If the Claimant fails to satisfy the Tribunal on the first test, the second test does not fall to be considered.
23. Albeit that in the immediate aftermath of the effective date of termination on 30 September 2006, the Claimant was distressed, had difficulty sleeping, was fretting about her finances, had lost weight, and was concerned principally with getting back into employment, it is clear from the findings of fact that she was also able to communicate with her former employer (she sent the written grievance on 6 October 2006), was able to consult a solicitor for advice in November 2006, and was also able to consult a Citizens' Advice Bureau in October/ November 2006. In the three months ending on 30 December 2006, the Claimant was also very active in registering with employment agencies, and was not so sufficiently incapacitated as to be unable to work. She was able to travel to and from Belfast, and was able to use the internet for research purposes. In her spare time, the Claimant was able to complete applications for prospective employment. The Claimant did not seek medical treatment for her stress and anxiety, or for her disrupted sleep and weight loss. She realised she had a possible claim against the Respondent when she saw it had advertised jobs in or about mid-November 2006. By this time, the Claimant still had approximately six weeks until the expiry of the statutory three months provided by Article 145 (2) (a) of the 1996 Order. There is no medical evidence before the Tribunal that would dissuade it from the determination that the Claimant was constrained by a physical and/or mental incapacitation sufficient to make it "not reasonably practicable" for her to present her claim before the end of the statutory three month period ending on 30 December 2006. Before 30 December 2006, she had had the benefit of advice from a solicitor and from a CAB, and realised she may have a possible claim against the Respondent in mid-November 2006. The Claimant's grievance had exhausted itself by 29 December 2006. On balance of probabilities, the Tribunal determines that it was reasonably practicable for the Claimant to present her claim by 30 December 2006. Accordingly, the Tribunal is not required to apply the second test provided by Article 145(2) (b) of the 1996 Order.
24. Given the determination in paragraph 23 above, the Tribunal determines the issue to be decided in paragraph 7 above in the negative, and decides that it does not have jurisdiction to entertain the Claimant's complaint in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996. Accordingly, the Claimant's complaint of unfair dismissal is dismissed for want of jurisdiction.
25. The Claimant has an outstanding claim for unauthorised deductions from wages, pursuant to Article 45 of the 1996 Order. The Claimant's attention is drawn to the provisions of Article 55(2) and Article 55(4) of the 1996 Order. Article 55(4) of the 1996 Order applies the same two-stage test as that provided by Article 145(2) (b) of the 1996 Order.
26. The jurisdiction of the Tribunal to hear the Claimant's complaint of unauthorised deductions from wages was not listed as part of the matters to be determined in this Pre-Hearing Review. Pursuant to Rule 12(1) of Schedule 1 to the 2005 Rules, this matter shall now be listed for a Pre Hearing Review. The issue to be decided at this Pre-Hearing Review is as follows;

Whether the Tribunal has jurisdiction to hear the complaint of unauthorised deductions from wages in view of the provisions of Articles 55(2) and 55(4) of the Employment Rights (Northern Ireland) Order 1996.

27. No other or further order was sought or is now made.

Chairman:

Date and Place of Hearing: 5 April 2007, Belfast

Date decision recorded in register and issued to the parties: