Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 220/07

CLAIMANT: Paul Quinn

RESPONDENT: Castle Bay Diesel Limited

DECISION ON A PRE-HEARING REVIEW

Constitution of Tribunal:

Chairman (Sitting Alone): Mrs Attracta Wilson

Appearances:

The claimant appeared in person representing himself.

The respondent was represented by Mr Colm Hagan, Barrister-at-Law, instructed by Faloon and Toal, Solicitors.

The decision of the tribunal is that the claimant's claims for unfair dismissal, right to receive particulars of contract and right to receive an itemised pay statement are out of time in circumstances where it was reasonably practicable for them to be presented in time.

The issues

The issues for the tribunal were as follows:

Whether the claims for unfair dismissal, Right to Receive Particulars of Contract and Right to Receive an Itemised Pay Statement have been presented in time and, if not was it reasonably practicable for the claims to be presented within the time limits laid down in the Employment Rights (NI) Order 1996.

Having considered the originating claim, the evidence of the claimant and letters handed in by the parties, the tribunal makes the following findings of fact:-

1. The claimant was summarily dismissed by the respondent from his employment as sales manager on 6 October 2006. It is agreed between the parties that this is the effective date of termination of employment for the purpose of these proceedings. The claimant presented his application to the tribunal on 5 February 2007. The tribunal is satisfied in these circumstances that these complaints are out of time.
2. Following his dismissal the claimant sought advice from the Citizen's Advice Bureau. He contacted them in the first instance on Monday 9 October 2006 and was advised by Fiona Chadwick a senior advisor, at all stages relevant to these proceedings. He also received advice from the Labour Relations Agency.
3. At this point it may be helpful to briefly refer to the correspondence exchanged between the parties and copied to the tribunal:-

The claimant received a letter from the respondent dated 11 October 2006 inviting him to attend a meeting on the 16 October. The claimant did not attend this meeting for reasons related to the conduct of the respondent. This was communicated to the respondent through his solicitors in a letter dated 12 October 2006 from Fiona Chadwick.

The claimant raised a grievance with the respondent by letter dated 8 November 2006. He received a reply dated the 27 November 2006 confirming the dismissal and renewing the invitation to a meeting.

The claimant replied by means of a further and final letter from Fiona Chadwick dated the 12 December 2006 reiterating his refusal to meet and acknowledging "that the grievance has been ignored".

4. On 12 December 2006 the claimant accepted that his grievance was ignored. At or around this time the issue of time limits was discussed.. Information in relation to time limits was given to the claimant at or about this time by Ms Bell from the Labour Relations Agency.
5. The claimant had absolute belief in the advice given by the Citizens Advice Bureau and by the Labour Relations Agency. It was his understanding following this advice, that the grievance procedures as applied by the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 ("the 2004 regulations") applied in respect of his unfair dismissal claim and in respect of his claims for contract particulars and an itemised pay statement. Consequently having lodged a grievance, he believed that the time within which his proceedings has to be lodged has been automatically extended and he believed his proceedings to be in time.
6. The claimant was not aware of the provisions of regulation 6(5) of the 2004 regulations which effectively provide that neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee. Equally he was not aware that the grievance procedures do not apply in relation to the complaints regarding his rights to particulars of contract and an itemised pay statement.

The Law

Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 provides that an industrial tribunal shall not consider a complaint [of unfair dismissal] 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.

Article 43(4) of the Employment Rights (Northern Ireland) Order 1996 provides that an industrial tribunal shall not consider a reference under this article [reference in respect of employment particulars or/and itemised pay statement] in a case where the employment to which the reference relates has ceased unless the application requiring the reference to be made was made –

(a) before the end of the period of three months beginning with the date on which the employment ceased, 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 application to be made before the end of that period three months.

As provided in both articles 145 and 43, when deciding whether time should be extended, a tribunal is required to consider whether it was reasonably practicable for the complaint to be presented within the required three month period and if not whether the time within which the claim was in fact lodged was reasonable.

In addressing the first question ie whether it was reasonably practicable for the complaint to be presented in time the tribunal considered the many authorities in this area including authorities dealing with the circumstances where advice is taken. The tribunal considered the case of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR119 and concluded that the substantial cause of the delay in this case was the claimant's mistaken belief regarding the law in respect of time limits. In these circumstances the case of Walls Meat Co Ltd v Khan [1978] IRLR499 is relevant and the following extract helpful.

"It is simply to ask this question: had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisors could not reasonably be expected to be aware of them. If he or his advisors could not reasonably have been so expected, it was his or their fault, and he must take the consequence."

It is the claimant's case that he acted on advice received from the Citizens Advice Bureau and the Labour Relations Agency and so the question arises as to whether these bodies could be reasonably expected to know the time limits. In circumstances where

•    Both bodies advised the claimant with confidence and leaving the claimant with an absolute belief that time has been extended,

•    Fiona Chadwick described as a senior advisor with the Citizens Advice Bureau advised the claimant immediately after his dismissal and in the months following that dismissal continued to advise him and entered into correspondence with the respondent on his behalf.

•    The matter of time limits was discussed in December 2005 with Ms Bell of the Labour Relations Agency.

•    The legislation apparently giving rise to the confusion regarding time limits, the Employment (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004 came into operation on the 3 April 2005, some eighteen months prior to the claimant's contact with these bodies the tribunal find that both the Citizens Advice Bureau and the Labour Relations Agency could reasonably be expected to be aware of the time limits.

The tribunal noted developments in the law following Khan and considered also the cases of Riley & Tesco [1980] IRLR 203, Dedman v British Building and Engineering Appliances Ltd [1973]IRLR 379 CA, Marks and Spencer v Williams – Ryan [2005] IRLR 562 and London International College v Sen [1993] IRLR333.

Conclusions

Taking all of the authorities into consideration together with the facts of this case the tribunal conclude that it was reasonably practicable for the claimant to present these claims in time. The tribunal in reaching this conclusion note the unexplained delay in lodging proceedings after 12 December 2006. At this time it was acknowledged that the grievance which was dated the 8 November was being ignored. On the basis of the advice (albeit mistaken advice) that the claimant received, he was in a position to lodge on the 12 December. Had he done so at this time or at anytime prior to the 6 January 2007 his claim would have been in time. The complaint was not presented until the 5 February and no reason is given for this delay other than the claimant's belief that there was time left to run. In these circumstances the tribunal find that it was reasonably practicable for the complaint to be presented in time.

Having made this finding the tribunal does not need to address the question as to whether the time within which the claim was presented was reasonable.

Chairman:

Date and place of hearing: 1 August 2007, Omagh Courthouse.

Date decision recorded in register and issued to parties: