Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/05206_09IT.html
Cite as: [2010] NIIT 05206_09IT, [2010] NIIT 5206_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 5209/09

5206/09

CLAIMANTS: 1. Marijas Narkevicius

2. Janina Makuniene

RESPONDENT: O & S Doors Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimants’ claims were lodged outside the requisite time limits and the tribunal declines to extend time. The claims were therefore dismissed in their entirety.

Constitution of Tribunal:

Chairman (sitting alone): Mrs Ó Murray

Appearances:

The claimants were represented by Mr Pazusis of the Lithuanian Advice Centre.

The respondent was represented by Mr Elliott, Barrister-at-Law, instructed by Simmons Meglaughlin and Orr Solicitors.

Reasons

1. The issue before the tribunal was whether the claimant’s claims were lodged within the requisite time limits and if so whether time should be extended.

2. The tribunal heard evidence from Mr Narkevicius, Ms Makuniene and
Mr Pazusis. I considered the evidence provided together with the submissions

of the parties, and found the following relevant facts and reached the following conclusions.

Mr Narkevicius’ Claim

3. It was agreed between the parties that Mr Narkevicius left the respondent on
7 January 2007. The claimant’s claim form was presented to the tribunal on
7 April 2009 and it was agreed that this was outside the applicable time limits.

4. At the date of the Pre-Hearing Review hearing the outstanding claims were, firstly, a Race Discrimination claim relating to dismissal and acts occurring before the date of dismissal; secondly, a claim for the national minimum wage and thirdly, a claim for unlawful deduction of wages.

5. The issue before the tribunal in relation to Mr Narkevicius’ claim related to whether or not time should be extended on just and equitable grounds and whether time should be extended in relation to the national minimum wage claim and unlawful deduction from wages claim on the grounds that it had not been reasonably practicable to lodge the claims within the time limit.

6. The claimant stated in evidence that he knew that he could make a claim but decided not to do so because his partner still worked for the respondent and he was fearful that she would be dismissed if he lodged a claim. The claimant’s partner was dismissed on 23 January 2009. The claimant sought advice from Mr Pazusis some 1½-2 months after his partner was dismissed. It then took a further few weeks before the claim form was lodged despite the fact that the claimant realised when he spoke to Mr Pazusis that his claim was outside the time limit. I am not satisfied from the evidence of the claimant that he took sufficient steps to lodge his claim after the dismissal of his partner. I also find that it was reasonably practicable for him to lodge his claims within the three-month time-limit. I decline to extend the time limits.

Ms Makuinene’s Claim

7. Ms Makuinene received a P45 with her leaving date as 11 June 2008 which is the date when she returned to Lithuania for medical treatment.

8. The parties were in dispute about whether or not the claimant resigned on that date or was dismissed on that date. On the claimant’s own evidence, however, she became aware that she had received a P45, when she returned from Lithuania at the end of September 2008. She queried this with her employer and was told at the beginning of October that there was no job for her. The claim form was lodged with the tribunal on 7 April 2009, that is, approximately seven months after she knew that she no longer worked for the respondent.

9. The claimant’s outstanding claims are, firstly, a claim for race discrimination in relation to her alleged dismissal on 11 June 2008 and, secondly, a claim for breach of contract in relation to pay and working hours. The applicable time limits for both

claims is three months from the date of dismissal. The claim form was therefore lodged outside the requisite time limit and the issue for the tribunal was whether or not to extend time on just and equitable grounds or because it was not reasonably practicable to lodge the claim within the time limit.

10. Having considered the evidence I am not persuaded that the claimant took sufficient steps to pursue a claim or seek advice on whether to pursue a claim within the time limits or within a reasonable period after the time limits expired. I also find that even if it was not reasonably practicable for the claimant to lodge her claims within the time limits she failed to move quickly enough to lodge proceedings once she knew she no longer worked for the respondent.

11. I have taken account of the fact that the claimant says that her English is very poor. Despite this the claimant was able to sign on for Jobseeker’s Allowance and deal with the Jobcentre in October 2008, that is, seven months before she lodged her claims to this tribunal. I am not satisfied that she took sufficient steps to find out what she could do in relation to her allegations of discrimination and breach of contract.

12. The claimant saw Mr Pazusis on several occasions and a claim form was completed and signed by her on 28 March 2009 but was not lodged with the tribunal until 7 April 2009. The claimant gave evidence that the form was signed the second time she saw Mr Pazusis and it was when she first saw
Mr Pazusis that she was aware her claim was outside the time limit. It was then incumbent on her to move quickly to lodge her claim.

Summary

13. In reaching my decision in relation to both claims I have looked at the extent of the delay, the reasons for the delay, whether advice was sought and whether action was taken as a result and I have weighed up the hardship which each party would suffer if the extension of time were granted or not.

14. As both claims were lodged outside the requisite time limit, it is for the claimants to persuade me to exercise my discretion to extend time whether on just and equitable grounds or because it was not reasonably practicable to lodge the claims within the time limits. The claimants have not persuaded me to exercise my discretion as I am not satisfied that they took sufficient steps to seek advice nor did they move quickly enough when it was clear to them that they could claim and that their claims were outside the time limits.

15. Whilst the claimants would suffer hardship in that they would not be able to pursue their claims any further, the respondents would suffer hardship in having to defend several claims which are clearly outside the time limits. The appellate courts have made it very clear that time limits are there to be observed and an extension of time limits is the exception rather than the rule with the burden on the claimants to persuade the tribunal to extend time.

16. In summary the claims were lodged outside the relevant time limits, the claimants have failed to persuade me to exercise my discretion to extend time and the claims are therefore dismissed in their entirety.

Chairman:

Date and place of hearing: 6 August 2010, Belfast.

Date decision issued to parties:

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