Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 468/08

CLAIMANT: Iwona Tomaszewska

RESPONDENT: Bridge Mushrooms Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant's complaints of breach of contract, unlawful deductions from wages, detriment on the grounds of health and safety and breach of the Working Time Regulations were not presented within the prescribed time limits in circumstances where it was reasonably practicable that they be presented in time. As a consequence the tribunal has no jurisdiction to consider these complaints and they are hereby dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mrs A Wilson

Appearances:

The claimant appeared in person representing herself

The claimant is Polish and was facilitated by an interpreter Ms Anna Kurzynska.

The respondent was represented by Ms Best BL instructed by Rosemary Connolly, Solicitors.

The Issues

The issues for the Tribunal were as follows:-

1. Breach of Contract Claim

Has the tribunal jurisdiction to entertain the claimant's complaint in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limits for presenting a complaint.

2. Unlawful deductions from wages

Has the tribunal jurisdiction to consider the claimant's complaint in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting a complaint.

3. Detriment on the grounds of health and safety

Has the tribunal jurisdiction to consider the claimant's complaint in view of the provisions of Article 71 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting a complaint.

4. Breach of the Working Time Regulations (Northern Ireland) 1998

Has the tribunal jurisdiction to consider the claimant's complaint in view of the provisions of Regulation 30 of the Working Time Regulations (Northern Ireland) 1998 regarding the time limit for presenting a complaint.

Sources of Evidence:

The tribunal considered the originating claim form, the response, documents handed in by the parties and the oral testimony of the claimant.

Findings of Fact:

5. The claimant commenced her employment with the respondent as a mushroom picker on 23 August 2004. She resigned from her employment on 15 August 2008. The claimant was absent from work from 11 February 2005 until 24 June 2005. The tribunal make no finding as to whether employment with the respondent continued during this period.
6. The claimant was absent from work on sick leave from 12 December 2006 until her resignation in August 2008. It is common case that her employment with the respondent continued during this period.
7. The date from which time began to run for the purposes of all issues under consideration by the Tribunal is 12 December 2006.
8. In or around January 2007 the claimant sought advice regarding her complaints from Gerald O'Neill of the Citizens Advice Bureau in Newry. It is her case that following receipt of that advice she believed that she was not entitled to bring a claim due to the fact that she was on sick leave. It is her case that this is the only reason why her complaints are out of time.
9. Notwithstanding this alleged belief the claimant raised a grievance with the respondent by letter dated 17 February 2007 in the following terms:-

"I worked 7 days a week without any days off

I had to be available at any time

I worked several hours daily, it means about sixty hours a week (80 was the most)

I had to work in dangerous conditions; the mushrooms were sprayed with some strong chemical agents

I lived in a caravan and I was obliged to pay £30 per week for it, but only £20 of this amount of money was detailed on the receipt

I received my contract of employment just after 18 months of my work. During the period before receiving it I was not able to get any bonuses (working tax credit)

I was treated badly, as the lower category worker, due to my weak ability to communicate in English.

Taking everything into account I would like you to compensate all my overworked overtime hours, working on my days off and holidays. Furthermore, I demand the settlement for all my moral loss and discrimination due to my weak knowledge of English, sex and origin."

10. The tribunal find on balance that the claimant was in fact aware of her entitlement to present a claim when she wrote the letter of 17 February 2007. The tribunal do not accept her evidence to the contrary. The tribunal find her to be an unconvincing witness for a number of reasons. It does not accept that she wrote this letter in circumstances where she believed that she did not have any entitlement to claim. Her evidence in relation to critical dates is vague and based on the copy of her curriculum vitae  produced to the tribunal  indicating a knowledge of English, the tribunal do not accept that her fluency in the English language is limited to the extent portrayed by her.
11. The respondent heard nothing further from the claimant until receipt of the originating claim form dated 7 March 2008.
12. The claimant presented her complaint following legal advice received by her in February 2008 during the course of proceedings raising similar complaints presented by her husband.
13. The Applicable Law and Conclusions
14. This tribunal is required to consider the issues outlined at paragraph 1, 2, 3 and 4 above. All issues relate to the time limits prescribed by the various statutes mentioned within which proceedings must be presented. The time limits in respect of all the issues under consideration are the same. Proceedings must be presented before the end of the period of three months from the date upon which the act complained of occurred 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 that period of three months.
15. The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 applies to all of the issues in this case and the effect of Regulations 15 is to extend the time limits prescribed in relation to all issues under consideration by a period of three months from the date upon which it would have otherwise expired in circumstances where the employee has raised a grievance with the employer with the prescribed 3 month time limit.
16. The tribunal is satisfied that the claimant raised a grievance by means of her letter of 17 February 2007 within the prescribed 3 month time limit and based upon this the tribunal find that the time limit within which proceedings were required to be lodged expired on 12 June 2007.
17. The tribunal considered relevant case law including Porter –v- Banbridge Ltd [1978] IRLR 271, Riley –v- Tesco Stores Ltd [1980] IRLR 103 and Westwood Circuits Ltd –v- Reid 2 AER 1013 as referred to by Ms Best.
18. The tribunal are mindful of the direction given by the Court of Appeal in Palmer and Saunders (appellants) v Southend-on-Sea Borough Council (respondents) 1984 IRLR 119 in the following terms:-

"The meaning of the words "reasonably practicable" from a review of the relevant authorities, lies somewhere between reasonable on the one hand and reasonably capable physically of being done of the other. To construe the words as the equivalent of "reasonable" would be to take a view too favourable to the employee. But to limit the meaning of "reasonably practicable" to that which is reasonably capable physically of being done would be too restrictive a construction. 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 Industrial Tribunal within the relevant three months".

19. The tribunal find in all the circumstances of this case that it was reasonably practicable for the claimant to present her complaints on time. Notwithstanding her assertion that she relied upon advice from Gerald O'Neill of the Citizens Advice Bureau that she did not have any entitlement to complain because of her absence from work on sick leave, the claimant nonetheless lodged a grievance with the respondent raising all of the issues under consideration here together with some other issues within the prescribed time limit. In all of these circumstances and having carefully considered his evidence the Tribunal find that the claimant was aware of her rights when she raised her grievance on 17 February 2007, and do not accept that it was not reasonably practicable for these complaints to be presented on time.
20. Having found this to be the case the Tribunal do not need to address the issue as to whether the time within which the complaints were in fact presented was reasonable.
21. All complaints are hereby dismissed.

Chairman:

Date and place of hearing: 5 September 2008, Belfast

Date decision recorded in register and issued to parties: