Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1125_08IT.html
Cite as: [2009] NIIT 1125_08IT, [2009] NIIT 1125_8IT

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THE INDUSTRIAL TRIBUNALS

Case Ref: 1125/08

CLAIMANT: Kenneth James McKillop

RESPONDENT: Nicholl Fuel Oils Ltd-Greysteel

DECISION ON A PRE-HEARING REVIEW

The tribunal has concluded that the claimant’s claim was lodged outside the statutory period of three months from the effective date of dismissal. The claimant has not shown that it was not reasonably practicable for him to have lodged his claim in time. The tribunal therefore has no jurisdiction to deal with this claim and it must be dismissed.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr T Browne

Appearances:

The claimant represented himself

The respondent was represented by Mr M Reid, Kelly Corr, Solicitors

The Issue

This case was listed for full hearing, although the respondent had already made a written request for a pre-hearing review. Whilst a full panel was present to deal with the case on its merits, no application had been made for the pre-hearing review to be determined by the full tribunal. The matter was therefore determined by the chairman.

The respondent contended that the claimant’s claim was out of time, thereby removing the tribunal’s jurisdiction to deal with the case.

Findings of Fact

The claimant was dismissed by the respondent on 9 April 2008; the letter of dismissal sent on 10 July stated “We believe that your actions amount to gross misconduct and that there is no reasonable alternative but to summarily dismiss you with effect at the end of 9.4.08” The letter also advised the claimant of his right to appeal.

On 16 April 2008, the claimant’s solicitor wrote to the respondent for the purposes of lodging a notice of appeal against that dismissal. The respondent then arranged an appeal hearing for 6 May 2008, which started as scheduled and was completed at a reconvened hearing on 14 May, where the decision was to confirm his dismissal. On 16 May, the respondent wrote to the claimant, formally confirming that his appeal had been unsuccessful.

The claimant lodged a claim alleging unfair dismissal with the Office of Industrial Tribunals on 11 August 2008.

The respondent on or about 17 November queried the jurisdiction of the tribunal to deal with this matter because it stated that the claim was out of time. In the respondent’s view, the three-month time limit had expired on 11 July at the latest, being three months from the letter of dismissal of 10April. That latter date in the submission of the respondent was the effective date of termination.

On 21 November, the claimant’s solicitors wrote to the respondent, stating that it was the claimant’s case that the effective date of termination was 16 May, being the date of the decision to uphold the dismissal.

Significantly, that letter of 21November states: “[the claimant] did not consult me between 16 May and 7 August, when I assisted him with finalising his application. My client does not believe that you are entitled to obtain particulars of advice given to him in connection with this matter.” Whilst it is correct that legal communications between lawyer and client are privileged, the right of waiver was not used by the claimant at the tribunal hearing. He neither asserted that he had received legal advice concerning time limits, nor did his solicitor attend to confirm for example that he had advised him.

Law and Conclusions

The Employment Rights (Northern Ireland) Order 1996 (‘the Order’) at Article 145 (2) states:

“...an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal-

Before the end of the period of three months beginning with the effective date of termination, 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.”

Therefore, once the effective date of termination is identified, it is for a claimant to satisfy the tribunal on the balance of probabilities that it was not reasonably practicable for him to lodge his claim. The test of reasonable practicability is less forgiving than that of ‘just and equitable’, which applies to other situations but not to this. There is no evidence in this case for example that the claimant was unable due to any medical condition either to complete the claim form himself or to give instructions that this be done on his behalf.

Mere lack of knowledge as to legal requirements is not a reason for the tribunal to accept that it was not reasonably practicable to lodge a claim. In this case, the claimant states that he thought he was still not dismissed until the outcome of the appeal hearing. Whilst he might well be sincere in that belief, I am satisfied that the effective date of termination in this case was 10 April 2008. It was a summary dismissal for alleged gross misconduct, without notice pay. The claimant was not for example permitted to return to work pending his appeal. He also claimed Jobseeker’s allowance from 10 April. That was a practical necessity, but in my view detracts from any assertion by the claimant that there could be any realistic doubt as to his employment status with the respondent.

There is no evidence to suggest that the claimant was misinformed by his legal advisers as to any time limits. It seems clear from his solicitor’s correspondence that he sought the assistance of his solicitor only from the viewpoint of sending professionally-drafted correspondence, as opposed to launching tribunal proceedings. I find it to be of great significance that the claimant does not seem to have consulted his solicitor at all between the lodging of the appeal notice on 16 April and filling in the tribunal forms on 7 August. The claimant has produced no evidence to satisfy me that he was in any way reliant upon specific guiding advice from his solicitor which would allow me to find that he was impeded from awareness as to the necessary time limits by any fault of his legal advisers.

The claimant has produced no evidence from which I could properly conclude that there was any impediment to him which did not make it reasonably practicable for him to present his claim in time. I therefore find that the tribunal does not have jurisdiction with his claim; the original decision to accept his claim was therefore unfounded and his claim must be rejected in its entirety.

Chairman

Date and place of hearing: 21 January 2009, Londonderry

Date decision recorded in register and issued to parties: