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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Turkington v Dams Northern Ireland Ltd [2011] NIIT 00493_11IT (15 September September 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00493_11IT.html
Cite as: [2011] NIIT 00493_11IT, [2011] NIIT 493_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 493/11
CLAIMANT: George Turkington
RESPONDENT: Dams Northern Ireland Ltd
DECISION ON A PRE-HEARING REVIEW
The tribunal allows the amendment to the claimant’s claim form to add a claim for breach of contract (notice pay).
Constitution of Tribunal:
Chairman (sitting alone): Mr B Greene
Appearances:
The claimant was represented by his wife, Mrs Turkington.
The respondent was neither represented nor in attendance.
THE SOURCES OF EVIDENCE
1. The tribunal heard evidence from the claimant. The tribunal also had regard to the claimant’s claim form; Case Management Discussion Records of Proceedings of 28 April 2011 and 5 July 2011; and a letter from the Newtownabbey Citizens Advice Bureaux on behalf of the claimant, dated 11 November 2010.
THE CLAIM AND DEFENCE
2. (1) The claimant, in his claim form, claimed that he did not receive notice of redundancy, was not consulted, and was not told of his redundancy until he received a letter dated 14 October 2010.
(2) The respondent did not enter a response.
(3) Following a Case Management Discussion on 5 July 2011 the tribunal directed that a Pre-hearing Review be held to consider four issues.
THE ISSUES
3. (1) Whether the claim form, submitted by the claimant on 7 February 2011, disclosed a claim for notice pay (breach of contract).
(2) If not, should the claimant be permitted to amend his claim to add a claim for notice pay (breach of contract).
(3) If the tribunal finds that the claim form contains a claim for notice pay (breach of contract) or if the tribunal permits an amendment to make such a claim, did the claimant bring his claim within three months beginning with the effective date of termination of the contract giving rise to the claim. (Article 7(a) Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.)
(4) If the claim was not brought within the three months, is the tribunal satisfied that it was not reasonably practicable for the complaint to be presented within the three month period and if not was it presented within such further period as the tribunal considers reasonable (Article 7(c) Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).
FINDINGS OF FACT
4. The following facts found by the tribunal emerge from the evidence adduced or appeared to the tribunal not to be in dispute;-
(1) The claimant does not have the benefit of legal representation and is assisted in the presentation of his claim by his wife. On 7 February 2011 he presented a claim form in which he stated;-
“I did not receive any notice of redundancy and was not told at any stage that I would definitely be made redundant nor was I offered any consultation. The first mention of redundancy was a letter I received on the 14 October.”
(2) The claimant received his full redundancy payment from his employer of £3,392.34 when he ceased working for his employer on 29 October 2010.
(3) Following a meeting at the Newtownabbey branch of the Citizens Advice Bureaux a letter was written by the CAB on his behalf to his employer in which the writer stated that the claimant had received a redundancy payment. The letter went on to say that there was no reference to any payment in lieu of notice. The letter further indicated that the claimant was entitled to 12 weeks notice of his dismissal. It suggested that the claimant worked for two weeks and two days leaving him with nine weeks and five days unpaid. The letter went on to calculate the notice pay to which the claimant allegedly was entitled at £2,001.16. This calculation was arrived at using the figure for weekly earnings arising from the redundancy payment at £242.31 per week gross which is £204.20 net. That figure is multiplied by 9.8 weeks giving the total sought. The letter then goes on to ask that this matter be resolved as quickly as possible.
(4) The claimant attended at the Newtownabbey Citizens Advice Bureaux about two weeks later to see if there had been any outcome to the letter of 11 November 2010 but there had not been.
(5) The claimant also spoke to the LRA in relation to this matter.
(6) The claim form then was submitted on 7 February 2011.
(7) In or about March 2011 the respondent offered to pay the claimant some £990.00, being one month’s wages by way of final settlement of the outstanding claim for notice pay. This offer was made through the offices of the LRA. The claimant refused to accept this offer and indicated he was seeking a greater amount. No further offer was made.
(8) By the date of the submission of his claim form on 7 February 2011 the only claim that the claimant had was for his notice pay, the claim for redundancy payment having been fully satisfied.
(9) This matter then came on for hearing on 28 April 2011 at which point the question as to whether a claim for notice pay had been made and if not whether an amendment may be required to the claim form to add a claim for notice pay.
(10) By letter of the same date the claimant sought to amend his claim and he wrote in the following terms to the Office of the Tribunals;-
“In furtherance to my existing claim, I would like to request an amendment. My original claim form states that I did not receive notice of redundancy and what I meant by this was that I did not receive payment in lieu of notice. The statutory redundancy payment itself was not in dispute, only the ‘payment in lieu’ and I would be grateful if the tribunal would amend my claim accordingly.”
(11) The claimant was informed by the Office of the Tribunals that this matter would be dealt with at a re-listed hearing.
(12) The matter was re-listed for 5 July 2011. Both parties were written to and both indicated their willingness to attend.
(13) It transpired that the proposed amendment to the claimant’s claim had not been served on the respondent and on 23 June 2011 the secretary wrote enclosing a copy of the proposed amendment and indicating that neither was the respondent informed that he would have 28 days in which to submit a response to the additional breach of contract (notice of pay) complaint. It was intimated to him that he might wish to do so before the hearing of 5 July and if that date were to pose difficulties by reason of immediacy that he could seek, in writing to have the hearing postponed.
(14) At the hearing on 5 July 2011 the claimant attended but the respondent did not. The tribunal was satisfied that the respondent had been notified of the hearing date.
(15) The tribunal considered that there might have been some confusion as what was to happen on 5 July 2011 and therefore it adjourned the claim so that the issues could be clarified and the respondent given an opportunity to seek to participate in the proceedings if it so wished.
(16) Accordingly the matter was re-listed for 30 August 2011 at 10.00 am to consider a number of issues at a Pre-hearing Review. Though at the hearing itself two issues were identified the Chairman considered on further reflection that in reality there were four preliminary issues as set out above.
(17) The respondent has not sought to put in a response to this claim at all.
(18) The tribunal was satisfied that the respondent was notified of today’s hearing.
THE LAW
5. (1) The tribunal has discretion to make an order giving the claimant leave to amend his claim under Rule 10(2) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
(2) A tribunal does not have jurisdiction to entertain a claim for breach of contract (notice pay) unless the claim is brought within three months beginning with the effective date of termination of the contract giving rise to the claim (Article 7(a) Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).
(3) A tribunal may consider the claim which is out of time, if the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the three months period and if it were not that it was presented within such further period as the tribunal considered reasonable (Article 7(c) the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).
(4) Tribunals are required to exercise their discretion in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial decisions (Selkent Bus Company Limited v Moore [1996] ICR 836 at 842 H).
(5) The principles to be applied by a tribunal when considering whether to permit an amendment are to be found in the Selkent Bus Company limited v Moore case and are discussed in Harvey on Industrial Relations and Employment Law section P1[311] to [313]. There are three categories of amendment applications:-
(a) The first category covers amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint. This category will not be subject to scrutiny in respect of time limits but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.
(b) The second category covers amendments that add or substitute a new cause of action but one that is linked to, or arises out of the same facts already pleaded in the original claim. This category of amendment is usually described as putting a new “label” on facts already pleaded. This type of amendment will not be subject to scrutiny in respect of time limits provided that the claim which is sought to be amended has been presented in time, but will be subject to scrutiny in respect of factors such as hardship and delay in making the application to amend.
(c) The third category covers amendments that seek to add or substitute a wholly new claim or cause of action or a new positive case involving consideration of facts that have not been previously pleaded to determine whether the amendment amounts to a wholly new claim as opposed to a change of label. It will be necessary as a matter of construction to examine the case as set out in the original application to see if it provides the necessary and “causative link” with the proposed amendment. Amendment applications coming within the third category are subject to scrutiny in respect of time limits as if they were entirely new claims that have been brought outside the time limit. The tribunal should therefore only exercise its discretion to grant an application to amend under this category if it considers it just and equitable to do so. In exercising that discretion the tribunal is required to consider the prejudice which each party would suffer as a result of granting or refusing the application and to have regard to all the circumstances, in particular;
(i) the length of and reasons for the delay,
(ii) the extent to which the cogency of the evidence is likely to be affected by the delay,
(iii) the extent to which the parties sued have cooperated with any requests for information,
(iv) the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action, and
(v) the steps taken by the claimant to obtain the appropriate professional advice once he knew of the possibility of taking action.
APPLICATION OF THE LAW AND FINDINGS OF FACT
6. (1) The tribunal is satisfied that when the claimant completed his claim form he was in fact seeking his notice pay, his redundancy payment having already been given to him on or before he left employment on 29 October 2010.
(2) The tribunal is equally clear that on a fair reading of the claim form that it is not apparent that the claimant is claiming notice pay only.
(3) On a reasonable reading of the claim form this proposed amendment amounts to the adding of a new claim. It must therefore be looked at as falling within the third category of amendment and be looked at not only from the point of view of time limits but also from the point of view of prejudice to the respective parties and in particular the five matters referred to above.
(4) The claim for notice pay, as properly formulated, was not made until 28 April 2011, the very day the tribunal brought to the claimant’s attention that the claim form did not disclose, on a fair reading of it, that the claim was for notice pay only. The reason for the delay is because the claimant already believed that he had made such a claim.
(5) The tribunal is satisfied that the cogency of the evidence is unaffected by this delay. There is no question of the claimant or the parties not cooperating in any request for information or in not dealing with the matter promptly as referred to above. The claimant did not have the benefit of professional advice nor did he seek it.
(6) Having considered these matters the tribunal is satisfied that it should exercise its discretion to permit this amendment for the reasons set out above and because it is satisfied that the prejudice to the claimant is fatal whereas there is much less prejudice to the respondent. In so concluding the tribunal was fortified further by the letter on behalf of the claimant sent by the Citizens Advice Bureaux of 11 November 2010 which clearly indicated it was notice pay that was being sought and also the claimant’s evidence that the respondent had engaged in some discussion, albeit unsuccessfully, to resolve the issue of notice pay.
7. Accordingly the tribunal permits the amendment to add a claim for notice pay.
8. The tribunal is satisfied that the claim for notice pay is outside the time prescribed by the 1994 Order.
The tribunal is satisfied that it was not reasonably practicable for the claimant to bring the claim within the three points period as up until 7 February 2011 the claimant was relying on the Newtownabbey Citizens Advice Bureaux and the LRA to secure his notice pay for him.
After the 7 February 2011, when he lodged his claim, he believed he was making a claim for notice pay. When on 28 April 21011 it was brought to his attention that the claim form, on a fair reading may not disclose a claim for notice pay (breach of contract) he sought an amendment the same day. The tribunal is satisfied that he brought his claim within a further reasonable period.
9. This matter will now proceed to hearing in the normal way.
Chairman:
Date and place of hearing: 30 August 2011.
Date decision recorded in register and issued to parties: