Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 379/07

CLAIMANT: Henryk Filipiak

RESPONDENT: Christopher Mustard and David Hamilton Trading As IN/EX Professional Decorators Commercial Painting Contractor

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal on a preliminary issue is that the tribunal has no jurisdiction to entertain the claimant's complaint of unfair dismissal in view of the provisions of Article 145(2) of Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting such a complaint.

Constitution of Tribunal:

Chairman: Mr N Kelly

Appearances:

The claimant was unrepresented and appeared in person with the assistance of an interpreter Mr Karol Kemenski.

The respondent was represented by Mr Christopher Mustard one of two partners trading as IN/EX.

The Issue

The preliminary issue fixed for hearing by a chairman sitting alone under Rule 18 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, was

"Whether the tribunal has jurisdiction to entertain the claimant's complaint of unfair dismissal 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, if applicable, regarding the time limit for presenting the said complaint."

(1) The title of the respondent is amended to read "Christopher Mustard and David Hamilton trading as IN/EX Professional Decorators Commercial Painting Contractor.

Findings of Fact

(2) The claimant is a Polish national. He commenced employment with the respondent on 15 August 2005. He returned to Poland at some point in November 2005 and returned to Northern Ireland in February 2006. He continued to work for the respondent from February 2006 until 3 November 2006 when his employment was terminated. He lodged a claim form with the tribunal on 13 March 2007.

(3) The claimant, with the assistance of a Polish friend who spoke good English, prepared a two page letter of grievance which was dated 20 November 2006 and which he posted to the respondent. That letter did not mention unfair dismissal and raised only matters relating to pay. In the letter the claimant alleged that he was owed a total of £1,310.50 in respect of loss of pay for one week, holiday pay for a period of three weeks, pay allegedly due for work completed in England, and the cost of the return trip to Poland. He stated in that letter "I have contacted the CAB and the Industrial Tribunal and have written this letter on their advice. I would appreciate a swift response."

(4) During the course of the tribunal hearing, the claimant spoke only through an interpreter. When asked to explain the delay in lodging the unfair dismissal claim, the claimant's evidence through that interpreter was that he "couldn't find a person to help him break the language barrier. His English was so limited. That is why it took so long." He further gave evidence that he had gone to see a solicitor at the end of January 2007, accompanied by his English speaking friend. He stated that he had not been advised at that time of the three month time limit for lodging a claim and that he believed that he could lodge a claim at any time. The claimant further stated that he did not want to ask his English speaking friend to help him fill out the claim form because he was over 80 years of age and was "probably not able to do it".

(5) He contacted the Polish Association in February 2007 and was given the telephone number of an individual whom he identified only as Tomas. He stated that this individual helped him to fill in the claim form but had then vanished with all his documentation. When asked why he waited for a further three months after his English speaking friend had assisted him to prepare his letter of grievance before contacting the Polish Association in February 2007, he stated that he had been looking for somebody else to help him, and that he didn't realise that there was a time limit. He further stated that he was in Poland for part of the relevant period.

(6) Mr Mustard put it to the claimant that he was in fact reasonably fluent in English and that he had been employed by the respondent to interpret on behalf of his colleagues and to liaise between customers and his colleagues. Mr Mustard stated that the claimant had been paid extra for these additional duties. The claimant accepted that he had acted as an interpreter. His only objection to the point being put by Mr Mustard was that he alleged that he hadn't actually received any money for these additional duties.

(7) I have concluded that the claimant sought to convey the impression that he had very limited English and that this was a significant factor in the delay in completing the claim form. I have concluded on the basis of Mr Mustard's evidence and the claimant's response to that evidence that the claimant was significantly more proficient in English than he was prepared to admit.

The Relevant Law

(8) Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 provides;

"(2) subject to paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to a 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 the 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."

(9) Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 provides for the extension of the normal time limit for presenting a complaint of unfair dismissal by a further period of three months beginning with the day after the day on which it would otherwise have expired. The Regulation applies where either of the dismissal and disciplinary procedures is the applicable statutory procedure, and where an employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting that complaint but had reasonable grounds for believing, when that time limit had expired, that a dismissal or disciplinary procedure, whether statutory or otherwise, was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.

Decision

(10) The preliminary issue before the tribunal concerns only the unfair dismissal claim lodged by the claimant. There were no grounds upon which the claimant could have had reasonable grounds for believing, for the purposes of Regulation 15(2) of the 2004 Regulations referred to above, that when the three month time limit for lodging such a claim had expired, a disciplinary or dismissal procedure was being followed. The letter of grievance dated 20 November 2006 raised no complaint about dismissal or indeed any other disciplinary matter and the claimant at no point during his evidence suggested that he thought that any procedure relating to his dismissal was ongoing when the three month time limit expired on 2 February 2007. The matter therefore falls to be dealt with in accordance with provisions of Article 145(2) of the 1996 Order as set out above.

(11) The Court of Appeal in Palmer and Saunders –v- Southend on Sea Borough Council [1984] IRLR 119 CA determined that the meaning of the words "reasonably practicable" in the equivalent GB legislation lies somewhere between "reasonable" on the one hand and "reasonably physically capable of being done" on the other. The Court determined that the best approach was to read "practicable" as the equivalent of "feasible" and to ask "was it reasonably feasible to present a complaint to the employment tribunal within the relevant three months?"

(12) The claimant sought to convince the tribunal the delay was substantially due to a significant language barrier caused by his limited English. I am not in a position to judge the precise level of fluency which the claimant possessed. However I do not accept that his English was as limited as he sought to suggest. He readily accepted in response to cross-examination that he had acted as an interpreter for his Polish colleagues and had liaised with customers on their behalf. In any event, he had been able to arrange for a perfectly literate letter of grievance to be issued to the respondent on 20 November 2006. The claimant was unable to satisfactorily explain why he had not sought further assistance from his English speaking friend to complete the claim form within the three month time limit. I do not accept the explanation put forward which was that his friend was over 80 and that the claimant did not wish to burden him. His friend had accompanied the claimant to see a solicitor in January 2007 and had assisted him to prepare the letter of grievance. The claimant further stated in evidence that his friend had spoken to Mr Mustard's business partner on the claimant's behalf. I do not see how completing a claim form, or assisting in the completion of a claim form would have been a significant additional burden. Furthermore no convincing explanation has been put forward for the claimant's failure to seek assistance from the Polish Association until an unspecified date in February 2007.

(13) The onus of proof is on the claimant to establish that it was not reasonably practicable to present the claim form to the tribunal within the statutory period of three months. I have heard no evidence on which I could conclude that it was not reasonably feasible for the claimant to have prepared and presented his claim to the tribunal before the time limit expired on 2 February 2007. The tribunal therefore does not have jurisdiction to hear this complaint of unfair dismissal and the complaint is dismissed.

Chairman:

Date and place of hearing: 29 June 2007, Belfast.

Date decision recorded in register and issued to parties: