Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/6844_09IT.html
Cite as: [2010] NIIT 6844_9IT, [2010] NIIT 6844_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 6844/09

7439/09

CLAIMANT: Mark James McMeekin

RESPONDENT: George Brown t/a George Brown Signs

DECISION

The unanimous decision of the tribunal is that:-

(1) the claimant’s claims of breach of contract and/or breach of the Working Time Regulations (Northern Ireland) 1998, as amended, (Case Reference No: 6844/09), in respect of loss of holiday pay, are out of time. The tribunal is not satisfied it was not reasonably practicable for the said complaints to have been presented to the tribunal in time. The tribunal therefore does not have jurisdiction to consider the said claims and they are dismissed; and

(2) the claimant’s claim of unfair dismissal (Case Reference No: 7439/09) is out of time and the tribunal is not satisfied it was not reasonably practicable for the claim of unfair dismissal to have been presented to the tribunal in time. The tribunal therefore does not have jurisdiction to consider the said claim and it is dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr R McKnight

Mr J McKeown

Appearances:

The claimant was represented by Ms A Legett, a friend of the claimant.

The respondent was represented by Mr C Briggs, Chartered Accountant, of Campbell & Campbell, Accountants.

Reasons

1.1 The claimant brought a claim to the tribunal on 26 August 2009 in which he made a claim for loss of holiday pay (Case Reference No: 6844/09). The respondent, in a response presented to the tribunal on 6 October 2009, inter alia, denied liability for any such claim.

1.2 The claimant brought a further claim to the tribunal (Case Reference No: 7439/09) on 15 November 2009, in which he made a claim for unfair dismissal. The respondent, in a response form presented to the tribunal on 10 December 2009, denied liability for any such claim.

2.1 In relation to the claimant’s claim for loss of holiday pay, there was no dispute between the parties that the claimant’s claim was a claim brought by the claimant for breach of contract but also pursuant to the Working Time Regulations (Northern Ireland) 1998, as amended (‘the 1998 Regulations’).

2.2 It is now well recognised that the statutory grievance procedure, pursuant to the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2003 Order’ and the ‘the 2004 Regulations’) do not apply to a claim of breach of contract. In this matter, there was no grievance made by the claimant, pursuant to the said procedures in respect of his claim for loss of holiday pay. In relation to a claim for breach of the 1998 Regulations, the statutory grievance procedure normally does apply. However, in the decision of the Employment Appeal Tribunal, in the case of Allen & Others v Murdock [EAT/0361/09], HHJ Peter Clark held that, since claims for unpaid holiday pay, pursuant to the Working Time Regulations could only be brought once an employee had been dismissed, the statutory grievance procedures did not apply to any such claim. This decision is not binding on this tribunal; but, in the absence of any relevant decision by the Court of Appeal in Northern Ireland, the tribunal considered it was appropriate to follow the above decision. As shall be set out elsewhere in this decision, the tribunal was satisfied the claimant was dismissed by the respondent on 24 April 2009; and the tribunal therefore concluded, in light of the above decision in Allen, that the statutory grievance procedures did not apply to the claimant’s claim pursuant to the 1998 Regulations. Therefore the failure of the claimant to make any such grievance was not relevant to the tribunal’s determination of this matter.

2.3 In order for the tribunal to bring a claim of breach of contract, the claimant’s contract of employment had to have been terminated, which the tribunal found (see later) to have occurred on 24 April 2009.

Under Article 7 of the Industrial Tribunals (Extension of Jurisdiction) Order (Northern Ireland) 1994 (‘the 1994 Order’), any claim for breach of contract must be made:-

(a) within three months beginning with the effective date of termination of the contract giving rise to the claim; or

(b) where the tribunal is satisfied it was not reasonably practicable for the complaint to be presented within the three month period, within such further period as the tribunal considers reasonable. The similar provision is to be found in Regulation 30(2) of the 1998 Regulations.

2.4 If the claimant’s claim for loss of holiday pay, whether brought as a claim for breach of contract and/or pursuant to the 1998 Regulations, was out of time and the extension referred to above was not granted, there was no dispute between the parties that the tribunal therefore would not have jurisdiction to consider the said claims and they would require to be dismissed by the tribunal.

2.5 As set out above, the claimant presented his claim to the tribunal, in relation to his claim for loss of holiday pay, on 26 August 2009. As the claimant’s contract of employment was terminated on 24 April 2009, as found by the tribunal, the claim for loss of holiday pay was therefore out of time. It was therefore, firstly, necessary for the claimant to establish it was not reasonably practicable for him to have brought his claim in time.

In relation to the test of ‘reasonably practicable’ the Court of Appeal, in the case of Marks & Spencer v Williams-Ryan [2005] IRLR 562, held that the said words should be given a liberal interpretation in favour of the employee; and, in the case of Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 117, the Court of Appeal interpreted ‘reasonably practicable’ to mean ‘was it feasible for the complaint to be presented in time’.

The test of ‘reasonably practicable’ is much narrower and harder for a claimant to establish than the test of just and equitable, which allows time to be extended in cases of discrimination.

2.6 The tribunal is satisfied that, at all times, the claimant knew that his contract of employment had been terminated on 24 April 2009 (see further Paragraph 3.5 of this decision) and had not been laid off on a temporary basis as he contended. The claimant, at all times following his said dismissal, believed that he had not received his full entitlement to holiday pay. Indeed, before bringing his claim for holiday pay to the tribunal, he had sought assistance, at some unspecified date between 24 April 2009 and 26 August 2009, from the Citizens Advice Bureau; though he maintained that he was not told by the Bureau anything about relevant time-limits for bringing a claim.

In the circumstances, and, in particular, the claimant’s knowledge that his contract was terminated on 24 April 2009, the tribunal could find no reason why it was not feasible for the claimant to bring his claim for loss of holiday pay, whether as a breach of contract claim or pursuant to the 1998 Regulations, within the relevant three month period. If the tribunal had reached a different conclusion in relation to the claimant’s immediate knowledge of the termination of his contract of employment on 24 April 2009 (see further Paragraph 3.5 of this decision) the tribunal might have reached a different conclusion in relation to the said ‘reasonably practicable’ test. The tribunal therefore was not satisfied the claimant’s claim for holiday pay was in time and further was not satisfied it was not reasonably practicable to have presented the claim within time. The tribunal therefore does not have jurisdiction to consider the claimant’s claim in respect of his loss of holiday pay, whether by reason of breach of contract or pursuant to the 1998 Regulations and the said claims must therefore be dismissed.

2.7 Even if the tribunal is wrong and the tribunal had jurisdiction to consider the claimant’s said claims by extending time, to 26 August 2009, the tribunal would still have dismissed the claimant’s claims for loss of holiday pay. The claimant, in the course of his evidence to the tribunal was very vague about the nature of his claim for loss of holiday pay – suggesting he was owed something in the region of one week’s loss of holiday pay but remained unable to clarify same with any relevant certainty or detail. The tribunal was satisfied that the contractual leave year with the respondent ran from April to April and the claimant, under his contract, was entitled to two weeks holiday pay together with the relevant eight statutory holidays, namely 12 – 13 July/two days at Christmas and Easter/the May Day holiday and New Years Day. By the date of his dismissal, the claimant, as he accepted, had received his full contractual entitlement under his said contract. In addition, he had taken two other days of leave during the period of his employment. In the circumstances, the tribunal was satisfied that there was no breach of contract. Under the 1998 Regulations, which provides the claimant with his minimum entitlement, the claimant was entitled, at the relevant time, each year to 24 working days, (ie 4.8 working weeks) which includes the said statutory days referred to above. It has to be remembered the claimant was only employed from 30 June 2008 and therefore, at the date of dismissal, had not been employed for a full year. The period of 4.8 working weeks, referred to above, has been increased to 5.6 working weeks; but only from 1 April 2009 by the Working Time (Amendment) Regulations (Northern Ireland) 2007. Taking account of the fact of the leave already taken by the claimant, as referred to above, and the fact that he had approximately a further nine weeks of employment before he would have been employed for a full year, the tribunal was not satisfied the claimant had established that he had lost any holiday pay which he could recover pursuant to the 1998 Regulations.

3.1 The claimant made a claim for unfair dismissal, as set out above, (Case Reference No: 7439/09) on 15 November 2009. He did not dispute the claim was out of time; but he submitted it was only when he received the respondent’s response to his claim for holiday pay (Case Reference No: 6844/09), on foot of the tribunal’s letter dated 15 October 2009, enclosing the said response, that he realised that he had in fact been dismissed on 24 April 2009 and not temporarily laid off, and that he was therefore entitled to make a claim for unfair dismissal. The said response was presented to the tribunal on 6 October 2009; but was not sent to the claimant until the tribunal’s letter dated 15 October 2009.

3.2 Article 145 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), which applies to the time-limits for presenting a claim for unfair dismissal, is in similar terms to Article 7 of the 1994 Order. Thus, it was necessary for the claimant to show it was not reasonably practicable for the claimant to present the claim of unfair dismissal in time and, if it was not, the claimant had brought the claim within a further reasonable period. If the claimant was unable to do so, the tribunal, it was acknowledged by the parties, would not have jurisdiction to consider the claimant’s claim of unfair dismissal.

3.3 As recognised by the representatives of the parties, crucial to the tribunal’s consideration of the time-issue was what happened on 24 April 2009 and, in particular, whether the claimant knew at that time that he had been dismissed rather than temporarily laid off by the respondent. In determining this issue, the tribunal was greatly assisted by the evidence of Mr Gordon Peden, an employee of some 10 years standing of the respondent, whom the tribunal found an impressive and truthful witness. He was clearly a person who had previously got on well with the claimant during the course of their work; and the claimant could give no reason why, as he suggested, Mr Peden would have lied to the tribunal when giving his evidence.

3.4 The tribunal, having considered the evidence of the claimant and George Brown, the respondent, but, in particular, Mr Peden made the following findings of fact, insofar as relevant and material:-

(i) The claimant was employed as a van driver by the respondent. He was mainly employed to erect/move estate agents boards/signs. On a number of occasions prior to the end of April 2009, Mr Brown had had to speak to the claimant about complaints he had received about the claimant’s work from a major firm of estate agents, who employed the respondent to erect/remove its signs/boards outside properties for sale/for letting. Mr Brown had also had to speak to the claimant on a number of occasions prior to end of April 2009 relating to his timekeeping and form of dress. Shortly before the end of April 2009, the claimant had also wrongly filled his van with petrol rather than diesel, much to Mr Brown’s annoyance.

(ii) On Friday 24 April 2009, at or about 4.00 pm, Mr Brown, without any warning, approached the claimant, who was cleaning his van in preparation for the following week, and dismissed him because of the complaints about his work, referred to above, but also the filling of his van with petrol rather than diesel. Mr Brown then arranged for Mr Peden to leave the claimant home in Mr Peden’s car; though Mr Brown did not tell Mr Peden the reason for his request. When bringing the claimant home in his car, Mr Peden became aware that the claimant was very shocked and upset. Mr Peden was quite clear, in his evidence to the tribunal, that the claimant expressly told him, in the car journey to his home, that he had just been dismissed/sacked by Mr Brown. Mr Peden acknowledged he had been genuinely surprised by what had happened; but he was adamant that the claimant had not told him, or had given him any reason to believe, that the claimant had been merely temporarily laid off by the respondent, rather than dismissed.

(iii) Following a mobile telephone conversation between Mr Peden and the claimant on Monday 27 April 2009, the claimant was fully aware that Mr Brown had commenced a new employee on that date to replace him; indeed the new employee, during the time of the telephone conversation, was in fact being shown the requirements for the job by Mr Peden. The tribunal, in light of Mr Peden’s evidence, does not accept the claimant’s contention, as set out in his claim form in respect of his claim for holiday pay presented to the tribunal on 26 August 2009, that it was only at that time that he had just found out that the respondent had employed someone else. In the tribunal’s judgment, the claimant had known this from at least Monday 27 April 2009.

(iv) The claimant was therefore dismissed by the respondent on 24 April 2009 and, at all times from at least 27 April 2009, he knew he had been dismissed by the respondent and that he had not been temporarily laid off.

3.5 In light of the findings of fact, as set out above, that the claimant had been dismissed on 24 April 2009 by the respondent, the claimant’s claim for unfair dismissal was therefore out of time, as the claim for unfair dismissal had not been presented to the tribunal until 15 November 2009. The claimant, when he brought his claim for breach of contract and/or breach of the 1998 Regulations, in relation to his claim for loss of holiday pay on 26 August 2009, knew he had been dismissed; but yet he did not at that time bring a claim for unfair dismissal. In addition, he had, at some unspecified date between 27 April 2009 and 26 August 2009 attended the Citizens Advice Bureau before bringing his first claim. He was therefore fully aware of the procedure for bringing claims to the industrial tribunals, if not within the three month period but at least by 26 August 2009. The claimant suggested in evidence that it was not until he received the respondent’s response form from the tribunal in a letter dated 15 October 2009, that he realised he had been dismissed by the respondent and not temporarily laid off. The tribunal does not accept, for the reasons set out previously, that he was under any such misapprehension. Indeed, the tribunal is satisfied that, when the claimant brought his claim for loss of holiday pay, he deliberately restricted his claim to a claim for loss of holiday pay and not for unfair dismissal, as he always hoped, as he admitted in evidence to the tribunal, that the respondent would give him his job back. The tribunal concluded he did not wish to lose any chance of that happening by bringing such a claim at that time and had hoped, by only claiming for loss of holiday pay, the respondent would re-employ him.

3.6 In the circumstances, for similar reasons to those set out above in relation to his claim for holiday pay, the tribunal was not satisfied that the claimant had shown any reason why it was not reasonably practicable for the claimant to have brought his claim in time. Even if the tribunal is wrong and it was not reasonably practicable to have presented his claim to the tribunal until he brought his first claim on 26 August 2009, the tribunal is not satisfied that the claimant has shown that he brought it within a reasonable time thereafter, having not brought his claim until 15 November 2009. Further, even if the tribunal was to accept the claimant only realised he had been dismissed and had therefore a claim for unfair dismissal, upon receipt of the respondent’s response form following the tribunal’s letter dated 15 October 2009, and it was not reasonably practicable to bring his claim until that date, the tribunal does not accept he presented his claim within a reasonable time thereafter, having waited a further month until 15 November 2009 before bringing his claim to the tribunal.

The tribunal therefore does not have jurisdiction to consider the claimant’s claim of unfair dismissal and it must be dismissed. In the circumstances, it was not necessary for the tribunal to consider further the admitted failure by the respondent to comply with the statutory dismissal and disciplinary procedures, pursuant to the 2003 Order and 2004 Regulations, when he dismissed the claimant on 24 April 2009 and the consequences of same, if any, for the claimant’s claim of unfair dismissal.

Chairman:

Date and place of hearing: 3 June 2010, Belfast

Date decision recorded in register and issued to parties: