Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 00258/08 & 00259/08

CLAIMANTS: Daniel Lipinski

Krzysztof Galik

RESPONDENT: Fisher Metal Group Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimants did raise grievances as required by Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003. The claims are out of time and it was reasonably practicable for the claimants to have presented their claims within the relevant time limits. The claims are therefore dismissed.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr S A Crothers

Appearances:

The claimants did not appear and were not represented.

The respondent was represented by Miss Vance of Croner Consulting Ireland.

1. The tribunal was satisfied that hearing Notices had been issued to the claimants. The tribunal proceeded to deal with the cases in the absence of the claimants taking into account the information contained within the claim forms. In addition the respondent's representative furnished correspondence from Baltica – Polish Office which had been issued on behalf of the claimants. The items of correspondence were dated 23 October 2007 and 8 November 2007.
2. The respondent's representative conceded that a grievance had been raised by the claimants on 23 October 2007 and that this was no longer an issue for the tribunal. The remaining issues were in relation to whether the claims were in time in accordance with Article 55 of the Employment Rights (Northern Ireland) Order 1996 (complaints to Industrial Tribunals in relation to unauthorised deductions from wages), Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998 as amended (in relation to payment for annual leave), and Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (in relation to breach of contract).

FINDINGS OF FACT

3. The tribunal considered the evidence before it and made the following findings of fact on the balance of probabilities:-

(1) the effective date of termination of employment for both claimants is 10 October 2007;

(2) the claimants presented their claims to the tribunal on 6 February 2008, the three month period for presenting such claims having expired on 10 January 2008.

(3) The two items of correspondence on behalf of the claimants from Baltica – Polish Office dated 23 October 2007 state that if the arrears in wages are not paid "we will be put under obligation to take this matter further". The further correspondence of 8 November 2007 refers to the date of termination of, inter alia, the claimants' employment on 10 October 2007 and stipulates that "we will be very grateful if you could reply to this letter before 15 November 2007, and inform ourselves of the sum of holiday pay you have calculated for my clients".

THE LAW

4. The relevant legislation in relation to the issue before the tribunal is referred to above. Where a claim is not presented in time, the tribunal has to consider whether it was reasonably practicable for the claimants to have presented it within the three month time period or 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 the relevant period.

SUBMISSIONS

5. The respondent's representative referred in her submissions to the case of Westward Circuits Limited v Read [1973] 2 All ER 1013 together with the cases of Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 CA; Walls Meat Company Limited v Khan [1978] IRLR 499 CA and Dedman v British Building and Engineering Appliances Limited [1973] IRLR 379 CA. These cases deal with the considerations to be taken into account by the tribunal in considering whether to extend time limit. The case of Palmer & Saunders v Southend-on-Sea Borough Council held that the best approach is to read "practicable" as the equivalent of "feasible" and to ask "was it reasonably feasible to present the complaint to the employment tribunal within the relevant three months?".

CONCLUSION

6. The tribunal is satisfied, on the facts as found, that it was reasonably practicable for the claimants to have presented their claims within the relevant three month period from the effective date of termination and, in the absence of any evidence or submissions to the contrary, dismisses the claimants' claims.

Chairman:

Date and place of hearing: 27 August 2008, Belfast.

Date decision recorded in register and issued to parties: