Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   05829/09

 

 

 

CLAIMANT:                                Samuel Mervyn Irwin

 

 

RESPONDENT:                          Blackbourne Electrical Co. Ltd

 

 

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant’s claim to the tribunal dated 24 April 2009 cannot be amended to include a claim for unfair dismissal, and that it would have been reasonably practicable for him to bring a claim for unfair dismissal within the statutory period of three months from the effective date of termination of his employment. The tribunal declares that the claimant’s claim for an unlawful deduction of £100.63 is well founded and the respondent is ordered to pay this sum to the claimant.

 

Constitution of Tribunal:

Chairman (sitting alone):           Ms W.A. Crooke

Appearances:

The claimant did not appear or instruct any representation, but indicated by telephone on the morning of the hearing that he would not be attending and the case was to continue in his absence.

The respondent was represented by Mr Neeson, Barrister-at-law, instructed by O’Rourke McDonald & Tweed Solicitors.

In respect of the legal issues set out in the Record of Proceedings attached hereto, Mr Neeson, Barrister-at-Law appeared on behalf of the respondent.  Mr David Daly of the respondent represented it in relation to the claims in respect of deductions.

Sources of Evidence

Mr Daly gave evidence on behalf of the respondent.  He also provided a bundle of documents.

 

Relevant Law

(a)  In respect of the legal issues: this is found in Article 145 (2) of the Employment Rights (Northern Ireland) Order 1996. 

 

(b)  In respect of the unlawful deductions: this is found in Article 45 of the same Order.

 

The Facts

 

1.     The claimant was employed by the respondent as an engineer.

 

2.     In December 2008, the claimant was selected to go on a course as part of his employment.  He was informed in writing by a memo of 19 December 2008 that he would have to repay 50% of the course fees if he left within twelve weeks of completing the course. The claimant was asked to sign the memo and return it to Mr Daly but failed to do so.

 

3.     The claimant also refused consent to the respondent deducting a £60 parking fine from his wages, although his contract of employment allowed the respondent to do so. Subsequently Roads Service accepted that this fine was the claimant’s responsibility.

 

4.     Although the claimant did not claim any specific amounts, the respondent indicated that he had made two claims for hours which he had not worked.  One was in respect of another course which finished early, and the claimant went home. His fellow employee on the course contacted the respondent and went back to work for the remaining half day. The second claim was in respect of his final day of employment. Upon the request of the respondent, the claimant left his van back to the yard, and then went home, rather than working his full day to 4.30pm.

 

5.     The claimant presented his claim to the tribunal on 24 April 2009. The claimant subsequently wrote to the tribunal on 10 August 2009, saying that he had omitted to include a claim for unfair dismissal.

 

Conclusions

 

6.     From a consideration of the client’s claim, the tribunal does not consider that it can be read as setting out a claim for unfair dismissal. There were claims about fellow employees ‘disappearing.’ The claimant was questioned about a job when a complaint was made about him.  There were the claims for deductions. The tribunal considers that the claim for unfair dismissal is a new claim and is supported in reaching this decision by the claim stating that the claimant left to go to another job, and the notes of the claimant’s exit interview which stated the same reason for leaving.

 

7.     This claim is therefore subject to a consideration of whether it was reasonably practicable to bring the case in time. The claimant claimed in his letter of 10 August 2009 that it was his ignorance of procedure which caused him to fail to bring his claim for unfair dismissal. The tribunal considers it would have been reasonably practicable for the claim for unfair dismissal to be brought in time, and does not consider that the claimant was ignorant of his rights. Clearly he knew enough to bring his claim in respect of deductions in time.  There is no reason why the claim for unfair dismissal could not have been included on the same form.

 

8.     The claimant’s claim in respect of the deduction of £100.63 is well founded. Plainly the respondent did not have his written consent to the deduction. As the alleged deduction of £60 for the fine was never actually made, this claim is dismissed. As the claimant has not demonstrated that he was entitled to be paid for hours he did not work, these claims are also dismissed.

 

9.     This is a relevant decision for the Industrial Tribunals (Interest) Order (NI) 1990.

 

 

 

 

Chairman:

 

Date and place of hearing:                   4 September, 2009, Belfast

 

Date decision recorded in register and issued to parties: