Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 221/07

CLAIMANT: Zydrunas Paulauskas

RESPONDENT: McCulla (Ireland) Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that there is no jurisdiction to hear the claimant's complaint of unfair dismissal as it was not presented to the tribunal within the time limits set down in the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman (sitting alone): Mrs Attracta Wilson

Appearances:

The claimant did not appear, but was represented by his wife, Mrs Paulauskiene.

The respondent was represented by Ms L J Vance, of Croner Consulting Northern Ireland.

The issues

1. The issues for the tribunal was:-

(i) whether the claim for unfair dismissal has been presented in time; and if not

(ii) was it reasonably practicable for the claim to be presented within the time limits laid down in the Employment Rights (Northern Ireland) Order 1996.

Sources of evidence

2. The claimant did not appear. Mrs Paulauskiene, having actively pursued this claim on her husband's behalf, gave evidence. The tribunal also considered the originating claim, the response, documents handed in by the parties and the submissions of Ms Vance, on behalf of the respondent. Mrs Paulauskiene, a Lithuanian without fluency in the English language, was facilitated in the case by an interpreter, Ms Asta Kochiene.

Findings of fact

3. The claimant was employment as a driver by the respondent.
4. The effective date of termination for the purposes of these proceedings is 15 September 2006. The claim was presented to the tribunal on 20 January 2007.
5. An appeal against dismissal was lodged by the claimant on 24 September 2006. On 31 October 2006 the claimant was informed that the appeal was unsuccessful.
6. About this time the claimant was very busy looking for alternative employment and had difficulty finding out the law in relation to dismissal and the remedies available to him. He was unaware of time limits and did not rush in his efforts to find out what his legal remedies were.
7. The claimant started work in a new job on 6 November 2006.
8. In or around November 2006, Mrs Paulauskiene undertook searches on the internet in an effort to find the applicable law. As a result she discovered forms which were relevant to the Employment Tribunals in England but nothing in relation to the Northern Ireland Industrial Tribunals. The English forms had contact telephone numbers but the claimant did not make contact for the purposes of seeking guidance regarding the Northern Ireland system.
9. In the middle of January, Mrs Paulauskiene, on her husband's behalf, contacted the Citizens Advice Bureau for advice. Mrs Paulauskiene was at all material times aware of the existence of the Citizens Advice Bureau and of the services offered by them. She did not contact them earlier because she had found them to be less than helpful in dealings she had with them two years previously. She had made no other efforts to seek advice apart from internet research.
10. The Citizens Advice Bureau referred Mrs Paulauskiene to the Labour Relations Agency and following advice received from both bodies the claimant presented his proceedings on 20 January 2007. At this time the claimant was aware that the three month time limit within which proceedings had to be lodged had expired. The claimant first became aware of the time limits in January 2007 following discussions with the Citizens Advice Bureau and the Labour Relations Agency.

The law

11. Under the Employment Rights (Northern Ireland) Order 1996, Article 145(2):-

" … 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 other 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."

12. It follows that this tribunal has to decide in the first instance whether it was not reasonably practicable for the claimant to present his complaint within three months of 15 September 2006. If the tribunal decides that it was not reasonably practicable to present the claim within the three month period, then it must move on to consider whether the time within which the claim was presented was reasonable.
13. The tribunal considered the many legal authorities in this area including:-

Western Circuit Ltd v Read [1973] 2 All ER 1013

Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119

Walls Meat Ltd v Khan [1978] IRLR 499

R J Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379

James W Cook & Co (Wivenhoe) Ltd (in liquidation) v Tipper and Others [1990] IRLR 386

Conclusions

14. Following Palmer and Saunders the tribunal is satisfied that the correct approach is to read 'practicable' as the equivalent of 'feasible' and to ask "was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months"?
15. Taking this approach, in conjunction with the leading authorities, the tribunal conclude that it was reasonably practicable for this complaint to be presented within the relevant three month period. In reaching this conclusion the tribunal were influenced by the following factors:-

The claimant following dismissal was busy looking for alternative work and did not rush to find out what his legal remedies were.

The claimant started a new job on 6 November 2006 but did not make determined efforts to find out his remedies at that time which was still well within the time limits.

Mrs Paulauskiene, on the claimant's behalf, made some efforts to find out the legal position through her use of the internet but did not seek advice elsewhere. In all her efforts she did not hurry because she was unaware of time limits.

Mrs Paulauskiene downloaded forms and information relative to the position in England in or around November 2006 but did not contact the Citizens Advice Bureau with those forms until January 2007. Mrs Paulauskiene was aware of the existence of the Citizens Advice Bureau and the service it provided at all material times, but did not contact them for advice until January 2007. This was because she did not find them helpful on a previous occasion two years earlier.

The tribunal finds that in all the circumstances of the case that had Mrs Paulauskiene contacted the Citizens Advice Bureau earlier, the likelihood is that the claimant would have been aware of the time limits and would have acted within them.

16. Having found that it was reasonably practicable for this application to have been presented in time, the tribunal do not need to consider the issue of whether the time within which it was presented was in fact reasonable.

Chairman:

Date and place of hearing: 2 August 2007, Belfast

Date decision recorded in register and issued to parties: