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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGuigan v R G Molloy & Sons [2012] NIIT 01861_11IT (24 January 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/01861_11IT.html
Cite as: [2012] NIIT 01861_11IT, [2012] NIIT 1861_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1861/11
CLAIMANT: John Joseph McGuigan
RESPONDENT: R G Molloy & Sons
DECISION
The unanimous decision of the tribunal is that it does not have jurisdiction to hear the claimant’s complaints as they were presented outside the statutory time limits.
Constitution of Tribunal:
Chairman: Ms J Knight
Members: Mrs P Weir
Mr A White
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Grahame Molloy of the respondent company.
ISSUES
1. The issues to be determined by the tribunal were:
(1) Whether the claimant presented his 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.
EVIDENCE
2. The tribunal heard the oral evidence of the claimant, Mr McGuigan and Mr Grahame Molloy and considered documentation to which it was referred by the parties.
DECISION
3. The tribunal gave the following decision to the parties at the Hearing:-
4. “The claimant, Mr John Joseph McGuigan, was employed the respondent RG Molloy & Sons from 28 or 29 January 1992 until he left his employment on 31 January 2011.
5. The claimant’s case is that he resigned from his employment in circumstances where the treatment of him by his employer entitled him to claim that he had been unfairly constructively dismissed. The respondent had paid the claimant the sums due to him in respect of unpaid wages and holiday pay prior to the hearing.
6. The effective date of termination of the claimant’s employment was therefore the 31 January 2011. The claimant, after seeking advice from the Labour Relations Agency on the date of the hearing, conceded that his complaint to the tribunal was lodged outside of the relevant three month statutory time limit but he requested that the tribunal exercise its discretion to extend the time for lodging his complaint outside of the normal statutory time limit.
7. The originating claim was not lodged with the Office of Industrial Tribunals and the Fair Employment Tribunal until 15 August 2011. The claimant told the tribunal that this was because he had been advised that he should “exhaust every avenue”.
8. An Industrial Tribunal has jurisdiction to hear a complaint of unfair dismissal if it has been presented within the time limit specified within Article 145 of the Employment Rights (Northern Ireland) Order 1996. Article 145(1) states that:-
“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 of the effective date of termination, or
(b) within such further period the tribunal considers reasonable in a case where it is satisfied it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”
9. At the effective date of the termination of the claimant’s employment, the statutory grievance procedures were still in force. Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 provided for an extension of the time limit for a further period of three months after the expiry of the original time limit where a grievance has been lodged within periods specified in Regulation 15 (3). The claimant in the present case did lodge a grievance in writing with his employer by letter dated 3 February 2011. However as the original time limit in the claimant’s case would have expired on the 30 April 2011, the extended period under the 2004 Regulations for lodging his claim expired on 30 July 2011.
10. The tribunal must therefore consider its discretion under Article 145(2)(b). Essentially the claimant must satisfy the tribunal that it was not reasonably feasible for him to present his claim within the period of three months beginning with 31 January 2011.
11. The claimant’s evidence was that he sought advice from the Citizens’ Advice Bureau within three days of his resignation and the CAB drafted his letter of grievance dated 3 February 2011. The letter of grievance refers in terms to the 2004 Regulations and the extension of the time limits. The claimant confirmed to the tribunal that he was advised by the Citizens Advice Bureau about the time limit for lodging his complaint of unfair constructive dismissal with the Office of Industrial Tribunals and the Fair Employment Tribunal and also with regard to the modified grievance procedure.
12. The claimant sought further legal advice from a firm of solicitors. He informed the tribunal that he was advised that he had exhausted all further avenues and that the time limit in his case would have expired on 8 September 2011. If this is the case the advice given to the claimant was clearly incorrect and the claimant may have a remedy against his solicitors.
13. However on the basis of the fact that the claimant did receive correct advice from the Citizens Advice Bureau concerning the relevant statutory time limit, prior to the expiry of that time limit, we do not accept that it was not reasonably feasible for the claimant to have lodged his complaint to the Office of Industrial Tribunals on time. This being the case the tribunal does not have jurisdiction to hear the claimant’s complaint of unfair constructive dismissal and his claim is dismissed in its entirety.”
Chairman:
Date and place of hearing: 13 December 2011, Belfast.
Date decision recorded in register and issued to parties: