Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 6094/09         

 

 

CLAIMANT:                       Simon Lindsay                         

 

 

RESPONDENT:                Coca-Cola HBC Northern Ireland Ltd

 

 

DECISION

 

 

The unanimous decision of the tribunal is that the claim is dismissed as the claimant did not meet the minimum service criterion required by Article 140 of The Employment Rights (Northern Ireland) Order 1996.

 

 

 

Constitution of Tribunal:

 

Chairman:               Mrs Watson                   

 

Panel Members:     Mrs Doran

                                 Mr Hanna

                                   

Appearances:

 

The claimant did not appear and was not represented

 

The respondent was represented by Mr Peter Hopkins B.L. instructed by McGrigors, Solicitors

 

 

1.       Issues for determination

 

Does the claimant meet the 12 month minimum service criterion under Article 140 of the Employment Rights (Northern Ireland) Order 1996 to ground his claim of unfair dismissal?

 

If so, was the claimant unfairly dismissed from his employment by the respondent?

 

2.       Preliminary Issue

 

The claimant lodged an originating claim form in which he claimed that he had been unfairly dismissed from his employment as a Temporary Technician by the respondent on 19 January 2009. He stated at Paragraph 5.1 of his claim form that his employment had begun on 27 May 2008, 7 months prior to the termination. The claim was lodged with the Tribunal Office on 8 April 2009 and rejected shortly afterwards on the basis that the length of service disclosed on the claim form did not meet the minimum qualifying period of employment under Article 140.

 

The claimant subsequently lodged a second claim form on 4 June 2009. The detail at Paragraph 7 (and attachments) was the same as on the original form but the claimant wrote that he had been employed by the respondent for 18 months.

 

The respondent was sent the second claim form on 30 July 2009. The response lodged by the respondent’s solicitor included the claim that the tribunal did not have jurisdiction to deal with the claim as the claimant did not meet the minimum service requirement and requested that this point be dealt with as a preliminary matter.

 

3.              Hearing

 

The claimant did not appear on the morning of the hearing. The tribunal clerk was informed that the previous week, the respondent’s Human Resource Manager, Mr Lynch, had telephoned the claimant who indicated that he had been advised to withdraw his claim. Mr Lynch had provided the claimant with the name and telephone number of the Conciliation Officer of the Labour Relations Agency and asked the claimant to confirm his intentions to him. When the claimant did not appear, the Conciliation Officer telephoned the number for the claimant given to him by Mr Lynch, and left a message asking the claimant to contact him.

 

The tribunal decided to proceed to hear the jurisdictional point and commenced the hearing by considering the information from the respondent’s representative under Rule 27 (5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

 

The Conciliation Officer informed Mr Lynch shortly after the hearing had begun that the claimant had returned his call and claimed that he had not known of the date of the hearing. The claimant did not withdraw his claim; nor did he ask for an adjournment. The tribunal heard oral evidence from Mr Lynch of the content of his telephone conversation with the claimant of the previous week and was satisfied that the date of the hearing had been discussed.

 

The tribunal was provided with a bundle of documents by the respondent’s representative. This included the claimant’s Terms of Appointment which had been signed by the claimant on 21 May 2009.

 

In addition, the documentation included a receipt for the Employee’s Handbook signed by the claimant and dated 27 May 2008, an Induction Training Record for the claimant which he signed and dated 27 May 2008, and form giving his leaving details which stated that his employment had commenced on 26 May 2008 and terminated on 19 January 2009.

 

The tribunal asked Mr Lynch if he had any idea why the claimant might have believed that his employment had been of longer duration.  Mr Lynch informed the tribunal that the claimant had originally been employed at the respondent’s premises by Grafton Recruitment from about December 2007. He had transferred to direct employment with the respondent in May 2008.

 

4.              Determination

 

The tribunal considered the oral and documentary evidence heard and also considered the decision in the case of James V London Borough of Greenwich [2008] EWCA Civ 35 which held that in order to determine whether agency working time should be considered part of service calculation, a tribunal had to look at the relevant contractual terms to determine the nature of the working relationships. Having considered the terms of the claimant’s contract with the respondent, the tribunal find that the claimant’s length of service as a direct employee of the respondent began on 26 May 2008. Before that date, the claimant’s contract was as an agency worker with Grafton Recruitment. The claimant does not meet the qualifying service period of Article 140 of The Employment Rights (Northern Ireland) Order 1996. The tribunal does not have jurisdiction to hear the claim which is dismissed.    

 

  

 

 

 

Chairman:

 

 

Date and place of hearing: 18 November 2009, Belfast.

 

 

Date decision recorded in register and issued to parties: