Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REF:  6832/09

 

 

CLAIMANT:                  Sylwia Lis

 

 

RESPONDENTS:         Central Florists Limited

 

 

DECISION

 

The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to determine the claimant’s claim of unfair dismissal because it was presented outside the statutory time limits. The tribunal declines to exercise its discretion to extend the time limit on grounds that it was reasonably practicable for the claimant to present her claim within three months from the effective date of termination.

 

 

Constitution of Tribunal:

 

Chairman:              Ms J Knight

 

Panel Members:     Mrs M Gregg

 

                                 Mrs V Walker

 

 

Appearances:

 

The claimant was represented by Mr Michael Lavery Barrister-at-Law instructed by Arthur J Downey & Co. Solicitors.

 

The respondent was represented by Mr Mark McEvoy Barrister-at-Law instructed by Rosemary Connolly Solicitors.

Issues

 

1.       The issues to be determined by the tribunal were:

 

(1)            Whether the claimant presented her complaint of unfair dismissal to the Office of the Industrial Tribunal and the Fair Employment before the end of the period of three months beginning with the effective date of termination and if not;

 

(2)            Whether it would have been reasonably practicable for the claim to have been presented within three months of the date of dismissal, and if not;

 

(3)            Whether the claim was presented within a reasonable time thereafter, and if so;

(4)            Whether the claimant was unfairly dismissed by the respondent, contrary to Article 145 of the Employment Rights (Northern Ireland) Order 1996.

 

2.        The tribunal determined at the outset with the agreement of the parties’ Counsel that it was in the interests of justice that the tribunal should not deal with the time limit issues in isolation as a preliminary point but should hear the entire evidence in the case before reaching its conclusions.

 

Evidence

 

3.       The tribunal heard the evidence of Ms Sywia Lis, the claimant and Mr Andrew Imrie, the claimant’s boyfriend, and  witnesses for the respondent company, Mr Ciaran Heaney, Mrs Cecilia Heaney and Mr Peter Connolly. The tribunal also took into consideration an agreed bundle of documentation and the claimant’s agreed Schedule of Loss.

 

Findings of Fact

 

4.       The tribunal made the following relevant findings of fact to be proven on a balance of probabilities.

 

(1)           The claimant, Ms Sylwia Lis, lodged her originating claim of unfair dismissal with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 21 August 2009, stating that her employment ended on 5 May 2009. The claimant is a Polish national and was employed as a florist by the respondent company from 5 November 2004. The respondent company is owned by Mrs Cecilia Heaney and operates as a florist’s shop. Mrs Heaney and the claimant had a close working relationship and they socialised together outside work. The claimant was invited to family events at Mrs Heaney’s home. Mrs Heaney arranged accommodation for the claimant. The claimant had a clear disciplinary record. Mrs Heaney did speak to the claimant about sending texts during working hours but the tribunal was satisfied that this did not constitute a verbal warning under the disciplinary procedure which was included in the bundle of documentation.

 

(2)           The events which led to the termination of the claimant’s employment       with the respondent occurred on 29 April 2009. At approximately 4pm,       Mrs Heaney and her husband drove up and parked outside the shop.       They observed the claimant outside the shop chatting to a friend, Mr       DR. Mr and Mrs Heaney watched for a few minutes to see whether the       claimant would go back into the shop. When they got out of the car,       Mrs Heaney followed the claimant into the shop and Mr Heaney       approached DR and asked him what he was doing outside the shop.

 

(3)           Mr Heaney then went into the shop and asked the claimant to go       upstairs as he wanted a word with her. The tribunal accepted the       claimant’s evidence that Mr Heaney shouted at her that he did not want       DR and a number of other named individuals, JM, GM and OM coming       to the shop as they were known drug dealers in the area. He raised the       fact that the claimant was seen socialising in a local bar with two of       these individuals. The claimant accepted that she was acquainted with       these individuals but denied any knowledge that they were involved in       drug dealing. The tribunal was satisfied that Mr Heaney was angry with       the claimant and that he suggested to her that by associating with       these people she was causing a loss of business for the shop. The       claimant who was upset and crying told Mr Heaney that she would in       future avoid these people now that she knew what they got up to.       Mrs Heaney   was present during this exchange between the claimant       and her husband but did not intervene.

 

(4)           Mr Heaney told the claimant not to repeat the conversation to anybody       outside the shop or she would be in trouble and he then left the shop.       The claimant and Mrs Heaney went downstairs and the claimant       alleges that they had a further conversation and that Mrs Heaney       suggested that if she repeated the conversation someone might come       and shoot the claimant and she would be returned to Poland in a body       bag.  Mrs Heaney left the shop at about 4pm to get ready for an       evening out with her family at the Odyssey in Belfast.

 

(5)           At about 6pm Mr Heaney telephoned the shop and spoke to the       claimant. The claimant’s case is that he told her again that if she       mentioned the conversation they had had upstairs she really would be       in trouble and that he “doesn’t need to have a Polish bitch like me in his       place”.  The claimant was unhappy with what he said and rang Mrs       Heaney on her mobile phone to ask her what was going on. She said       that as she spoke she could hear Mr Heaney in the background saying       not to answer and that Mrs Heaney hung up without speaking. The       claimant immediately rang again and this time the call was answered       by Mrs Heaney’s daughter who said that her mummy could not take the       call as she was driving. Both Mr and Mrs Heaney denied that the       claimant was called a Polish bitch and stated that such a thing would       not be said in the presence of their daughter.

 

(6)            The claimant and her work colleague left the shop at about 6.10pm.       The claimant then telephoned DR and GM and told them about her       conversation with Mr Heaney. Afterwards the claimant returned to the       shop to collect some shopping. Mrs Heaney’s father, Mr Peter       Connolly, who helped out in the shop and did deliveries, was still there.       The tribunal accepted the claimant’s evidence that when she told him       that she thought she would have to look for a new job because she       could not continue to work in a place where they were treating her so       badly. Mr Connolly indicated essentially that he did not wish to get       involved. The tribunal did not find credible   Mr Connolly’s evidence      that the claimant told him that she was resigning because she       had another job.

 

(7)           The claimant went home and at approximately 7.15pm received a       further telephone call from Mr Heaney who said that he had just been       informed by a colleague that he had received a text from JM stating       that Mr Heaney had called JM a drug dealer. Mr Heaney told the       tribunal that while they were at the Odyssey he received a phone call       from his son who was at home to say that GM was outside the house in       a van. They were greatly concerned for the safety of their son and       property and telephoned Mr Connolly, who lives next door to take their       son in and to secure their property. Mr Heaney told the claimant that he       knew that she had repeated the conversation they had had in the shop       and that she was to be suspended from her job and that she was not to       come near the shop anymore. He said that she would receive a letter       from his solicitor and he hung up. The claimant immediately rang Mrs       Heaney who advised that it was between the claimant and her husband       and repeated that the claimant was suspended and that she would       receive a solicitor’s letter. Mr Imrie witnessed these telephone       conversations and confirmed that the claimant was distressed. He       advised her that she should go into the shop the next day and speak to       Mrs Heaney to get it sorted out.

 

(8)           The next morning at approximately 9.50 am, as the claimant was       preparing to go into the shop to speak with Mrs Heaney, she received a       call from a male caller at an unknown number who said “Hello, is that       the Polish prostitute?” The claimant told the tribunal that she       recognised the caller’s voice to be that of Mr Heaney. The claimant       hung up but a few minutes later received a further abusive phone call       from the male caller who said that as long as he was alive she       would not find another job and that people would believe him, a       respectable businessman, rather than her. He said that she would       return to Poland quicker than she came here and that he would send       someone to “sort her out”. The claimant hung up. She told the tribunal       that she believed that the caller was Mr Heaney she inferred from what       he said that she was not to go back to the shop and that she had been       dismissed.

 

(9)           The claimant did not return into work and did not receive any       communication from Mrs Heaney. The claimant told the tribunal that       this confirmed her belief that she had been dismissed by the       respondent. On previous occasions when she had not gone into the       shop, Mrs Heaney had phoned her to find out why. The claimant told       the tribunal that she sought advice from the Citizen’s Advice Bureau       and her solicitor who, she said, advised her to request her P45 and P60       as she only had 28 days to “set out her case”. The claimant telephoned       Mr Heaney on 5 May 2009 and asked for these documents. Mrs       Heaney wrote to the claimant on 6 May 2009 accepting “your verbal       resignation to my father on Wednesday 29 April 2009 and your       confirmation of your resignation to me on Tuesday 5 May 2009...” The       claimant was paid wages up until 29 April 2009.

 

(10)        The claimant’s solicitor wrote to Mrs Heaney on 10 June 2009 disputing       that the claimant had resigned and asserting that she was in fact       unfairly dismissed, seeking reasons for the dismissal and requesting a       copy of her contractual terms of employment within 28 days of the date       of the letter.  The respondent’s solicitor replied on 7 July 2009 denying       that the claimant was dismissed and reiterating that the claimant had       resigned.

 

(11)        The claimant’s originating claim complaining of unfair dismissal was received by the Office of the Industrial Tribunals and the Fair Employment Tribunals on 21 August 2009, having been sent by first class post on 20 August 2009 by the claimant’s solicitor. The claimant’s signature is dated 19 August 2009. The originating claim form acknowledges that the claim is lodged outside the three month time limit but requests that the tribunal accept her claim as she had not received a letter from her solicitor asking her to attend to complete the originating claim form as she had moved address. The tribunal was told that the claimant’s solicitor had lost contact with the claimant from the beginning of July 2009 until 17 August 2009 because she had moved address to Kilkeel in early July 2009 and omitted to notify her solicitor of her new contact address. Her solicitor sent correspondence to the claimant at her friend’s house, where the claimant had been    staying, but the friend had gone to Poland, not returning until 17 August 2009. The claimant confirmed to the tribunal that her solicitor had her mobile phone number.

 

The Law

 

          5.       An employee has the right not to be unfairly dismissed by his or her employer      pursuant to Article 126 Employment Rights (NI) Order 1996 as amended.         (“the 1996 Order”)

 

Article 145 of the 1996 Order provides that:

 

(1)      A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2)      Subject to paragraph (3), an industrial tribunal shall not consider a complaint under this Article   unless it is presented to the tribunal—

 

(a)      before the end of the period of three months beginning with the effective date of  termination or;

 

(b)      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.

   

Conclusions

 

6.              The claimant’s case was consistently that she was dismissed from her employment and that she construed from what Mr Heaney said during his telephone calls on 29 and 30 April to be words of dismissal in circumstances where Mrs Heaney apparently authorised his actions. The letter dated 10 June 2009 from the claimant’s solicitor to the respondent shows that the claimant’s instructions at that stage were unequivocally that the respondent had terminated her employment and that she considered that she was unfairly dismissed. The respondent denies that the claimant was dismissed but contends that she resigned. The tribunal did not accept that the claimant resigned on 29 April 2009 as per Mr Connolly’s evidence.  However the tribunal is satisfied that the claimant’s employment terminated with effect from 30 April 2009. It was conceded that by counsel for the claimant that her originating complaint was presented outside the three month statutory time limit contained in Article 145 of the 1996 Order, which expired on 29 July 2009.

 

7.               The tribunal considered whether there were grounds to exercise its discretion

to extend the time for presenting the claim. The claimant must first show that it was not reasonably practicable to present her claim in time. The burden of proving this rests firmly on the claimant (Porter v Bandridge Ltd [1978] IRLR 271, [1978] ICR 943, CA). If she succeeds in doing so, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. The test as to whether it was possible to present an originating claim within the statutory time limit is one of “reasonable feasibility”. (Palmer and Saunders v Southend-on-Sea Borough Council [1984] 1 All ER 945, [1984] IRLR 119.)

 

8.               The reason advanced by the claimant for the late presentation of her claim was that she had lost contact with her solicitor because she did not inform him of her change of address around the beginning of July 2009. The tribunal considers that it was incumbent on the claimant to notify her solicitor of her change in address. The tribunal took into account that the claimant’s solicitor had her mobile telephone and could have telephoned her or sent a text when she did not respond to letters. The tribunal considers therefore the loss of contact was ultimately the responsibility of the claimant. The tribunal took into account that the claimant sought advice from both the Citizens’ Advice Bureau and her solicitor shortly after the termination of her employment and time limits for lodging the claim were discussed with her around this time. The claimant was under a misapprehension that the time limit was even shorter than the statutory three months but in any event she told the tribunal that she had left her case in the hands of her solicitor. The tribunal was satisfied in the present case that the originating claim could have been lodged within the three month time limit.

 

9.               For these reasons, the tribunal concluded that the claimant did not discharge her burden of showing that it was not reasonably feasible for her to lodge her complaint within the statutory time limit and it does not exercise its discretion to extend the time for presenting the claim. It is therefore not necessary for the tribunal to determine the third and fourth issues. The tribunal does not have jurisdiction to consider whether the claimant was unfairly dismissed.

 

10.     The claimant’s claim is therefore dismissed in its entirety.

 

 

Chairman:

 

 

Date and place of hearing:  28-29 January 2010, Belfast

 

 

Date decision recorded in register and issued to parties: