Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNAL

CASE REF: 851/07

CLAIMANT: Ruth Ellen Tweed

RESPONDENT: Junction One Limited

DECISION ON A PRE-HEARING REVIEW

The Tribunal has jurisdiction to entertain the Claimant's complaint of unfair dismissal as it was presented in time, pursuant to Article 145(2) of the Employment Rights (NI) Order 1996 and Regulation 15 of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004.

Constitution of the Tribunal:

Chairman (Sitting Alone): Mr M G O'Brien

Appearances:

The Claimant was represented by Mr A Hayes, of Counsel, instructed by Thomas Taggart & Sons, Solicitors.

The Respondent was represented by Mr P Moore, Peninsula Business Services.

Sources of Evidence

Mr Daniel McIlwrath gave evidence for the Respondent.

The Contentions of the Parties

1. By her claim, presented on 20 April 2007, the Claimant asserted at section 5.3 that her claim was unfair dismissal, and at section 5.4 that she had no other complaint to make to the Industrial Tribunal. Section 5.5 of the claim form was left incomplete. At section 6.1 of the claim form, the Claimant asserted she had commenced employment on 21 June 2005 and that this employment had ended on 12 January 2007. At section 12.1 of the claim form, the Claimant stated that she had never received written particulars of employment. Moreover, she stated that she had lodged an appeal against her dismissal. This appeal was lodged on 20 January 2007, and she was eventually notified that the appeal would be heard on 23 March 2007. The Claimant continued;

… I presented my appeal before a different managerial panel and I was told that I would be notified of the outcome within the week. I decided to await this notification. By the end of last week I still have received nothing. I had not lodged the claim for unfair dismissal as I was waiting in good faith for the outcome of my appeal. However, since it is not forthcoming as yet, and in order to safeguard my position, I now feel that I have no option but to lodge a claim for unfair dismissal.

I believe my dismissal was unfair and unjustified in all the circumstances as any misconduct by me was the result of a genuine mistake which should not have constituted the basis for summary dismissal. In all the circumstances I apply for an extension of time on the following grounds;

1. This IT1 is being lodged only 7 days after the expiry of the three month period from 12 January 2007.

2. There has been no prejudice caused to any party by any delay on my

part.

3. The real cause of the delay is the failure of my employer to process my appeal expeditiously. I do not feel that my employer should benefit from its own delay and inefficiency in failing to adhere to good practice with regard to the processing of my appeal….

2. The Respondent presented a response to the claim on 20 June 2007. Section 3.1 of the response indicates that the dates of employment given by the Claimant are correct. At section 5 of the response, the Respondent indicates that it intends to resist the claim, and section 6 gives an extensive outline of the grounds for this resistance. It is stated in this outline at point 9 that the Respondent wrote to the Claimant on 19 January 2007 to confirm that her employment had ended on 12 January 2007. Point 10 of the outline states that the Claimant appealed this decision on 20 January 2007. Point 11 of the outline states this appeal hearing was on 23 March 2007. This led to a further investigation of the circumstances surrounding the dismissal, and that the delay in finalising this investigation was caused by a family crisis in the investigator's family. This crisis was notified to the Claimant on 29 March 2007. The investigator, Mr McIlwrath, returned to work, and the appeal was dismissed by letter dated 23 April 2007.

Findings of Fact

3. The Claimant was employed from 21 June 2005 to 12 January 2007. The Claimant was dismissed from her employment by letter dated 19 January 2007. This letter was hand-delivered to her on 19 January 2007. It is common case the dismissal took effect from 12 January 2007. The Claimant lodged an appeal against her dismissal on 20 January 2007. The first appeal hearing was listed on 5 March 2007. This hearing was cancelled by letter dated 5 March 2007. By letter dated 8 March 2007, a further appeal hearing date was set for 23 March 2007. This hearing went ahead on 23 March 2007. The appeal hearing resulted in a further investigation. Mr Daniel McIlwrath (Respondent Accountant and Secretary) co-ordinated this investigation. Owing to a family crisis, Mr McIlwrath was off work during this investigation. He wrote to the Claimant on 29 March 2007 to advise her of this personal situation and confirm that he would revert as soon as possible. The Claimant wrote to Mr McIlwrath on 10 April 2007. The Claimant presented her claim to the Tribunal on 20 April 2007. Mr McIlwrath reverted the Claimant on 23 April 2007, dismissing her appeal.

The Issues to be Decided

4. The issue to be decided in this Pre-Hearing Review is as follows;

"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 (NI) Order 1996 and Regulation 15 of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004, if applicable, regarding the time limit for presenting the said complaint".

Applicable Law

5. The law applicable to the above issue is provided by Article 145(2) of the Employment Rights (NI) Order 1996 and Regulation 15 of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004. These are set out below.

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

(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.

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.

(3) The circumstances referred to in paragraph (1) (b) are that the employee presents a complaint to the tribunal -

(a) within the normal time limit for presenting the complaint but in circumstances in which Article 19(2) or (3) or Article 20(1) or (2) of the Order of 2003 does not permit him to do so; or

(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 1 in relation to his grievance within that normal time limit.

(4) For the purposes of paragraph (3) the following acts shall be treated, in a case to which the specified regulation applies, as constituting compliance with paragraph 6 or 9 of Schedule 1 –

(a) in a case to which regulation 7(1) applies, compliance by the employee with the requirement in regulation 7(2);

(b) in a case to which regulation 9(1) applies, compliance by the appropriate representative with the requirement in sub-paragraph (a) or (b) of that regulation, whichever is the later;

(c) in a case to which regulation 10 applies, the raising of his grievance by the employee in accordance with the procedure referred to in that regulation.

(5) In this regulation "the normal time limit" means -

(a) subject to sub-paragraph (b), the period within which a complaint under the relevant jurisdiction must be presented if there is to be no need for the tribunal, in order to be entitled to consider it to -

(i) exercise any discretion; or

(ii) make any determination as to whether it is required to consider the complaint, that the tribunal would have to exercise or make in order to consider a complaint presented outside that period; and

(b) in relation to claims brought under the Equal Pay Act (Northern Ireland) 1970, the period ending on the date on or before which proceedings must be instituted in accordance with section 2(4) of that Act.

The Decision of the Tribunal

6. The Tribunal has had regard to the issues raised in the claim, the response, to the findings of fact made, and by the representatives' submissions.
7. It is clear that the Claimant's effective date of termination of employment was 12 January 2007. By Article 145(2) of the Employment Rights (NI) Order 1996, her claim to the Industrial Tribunal should therefore have been presented by midnight on 12 April 2007. It was not presented by that deadline, and is therefore out of time by some eight days when it was presented on 20 April 2007.
8. Notwithstanding the judicial discretion provided by Article 145(2) (b) of the 1996 Order, Regulation 15 of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004 allows this time to be extended in certain circumstances. By Regulation 15(1) of the 2004 Regulations, time can be extended from 13 April to 13 July 2007. Regulation 15 (2) provides that this extension can be granted where the Claimant had reasonable ground for believing at the expiry of the deadline (in this case 12 April 2007) that a dismissal procedure was being followed in respect of the matter that included the substance of the tribunal complaint. Pursuant to Regulation 5(2) (c) of the Regulations, such a procedure can include an appeal against a dismissal.
9. The Claimant's appeal procedure is, par excellence, such a dismissal procedure. By the deadline of 12 April 2007, it was still ongoing, owing to Mr McIlwrath's personal circumstances. Mr Moore conceded there was absolutely no reason to disapply the provisions of Regulation 15(1) and (2), and conceded that the Claimant should benefit from the extension of time. The Claimant became impatient for progress, and presented her claim on 20 April 2007 to protect her position. The Tribunal agrees with Mr Moore's concession. The Tribunal determines that Regulation 15 of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004 provides the Claimant with a further three months to 13 July 2007, because her appeal was ongoing at the date of presentation, 20 April 2007. The appeal process terminated by letter dated 23 April 2007. Accordingly, the Tribunal determines the Claimant's claim is in time, and the Tribunal has jurisdiction to hear her claim.
10. No other Order is now made.

Chairman:

Date and place of hearing: 7 August 2007, Belfast

Date decision recorded in register and issued to the parties