Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/201_12IT.html
Cite as: [2012] NIIT 201_12IT, [2012] NIIT 00201_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1058/12

CLAIMANT: Justyna Dubieniewicz

RESPONDENT: All Tex Recyclers Limited

DECISION

The unanimous decision of the tribunal is that the claimant is not entitled to bring proceedings claiming that she was unfairly dismissed, as she failed to make her claim to the tribunal within the time allowed and the tribunal does not exercise its discretion to extend the time so allowed.

Constitution of Tribunal:

Chairman: Mr S M P Cross

Members: Mrs M J McReynolds

Mrs S Doran

Appearances:

The claimant appeared in person and was not represented, however she was assisted by an interpreter, Ms Sherwood.

The respondent was represented by Mr H Burns, the Personnel Manager of the respondent company.

FINDINGS OF FACT

1. The facts were not in dispute. The claimant was employed in the respondent’s warehouse as a textile grader. Her job was to sift through reclaimed garments to place them in different grades for further process. The correct designation of each garment was very important as the respondent had to be able to rely on the skill of the graders to insure that the second hand garments got into the correct bins, as the price for the reclaimed goods was based on the different qualities of material recovered by the graders. If the material put in a particular bin was not up to that bin’s standard the respondent would be criticised by the ultimate customer. If the material was of a superior quality and went into a lower quality bin, the respondent would lose profit on the sale of the better quality material which was wrongly graded.

2. The factory employs 225 people of whom 150 are graders. A very large number of the employees are Polish like the claimant. The claimant worked in the trouser department.

Over a period of a few months she was disciplined on a number of occasions for mistakes in the grading that she was doing. Finally on 2 March the claimant was dismissed for consistently producing sub standard work. She was given one week’s notice and her last day was 7 March 2012. She was offered an appeal but no appeal was received by the respondent. The claimant said that she did submit an appeal but did not retain a copy.

3. The claimant lodged an application to the tribunal dated 7 June 2012, which arrived and was date stamped at the tribunal office on 11 June 2012, a few days after the final date within which the claimant is entitled to make a complaint to a tribunal.

4. The claimant had after her dismissal consulted a Solicitor, Ms Deirdre Lynch of Messrs McConaghie Lynch. Ms Lynch wrote to the respondent on 24 May saying that her client had lodged a letter of appeal at the end of April but had received no response. The respondent checked the matter again and found no such appeal. The respondent replied accordingly and pointed out, that the rules of disciplinary procedures in the contract of employment, required the claimant to lodge her appeal within 10 working days of the date of the decision to dismiss. Clearly an appeal at the end of April would have been well out of time.

THE LAW

5. Article 145 of The Employment Rights (Northern Ireland) Order 1996, states as follows:-

“Complaints to industrial tribunal

145.— (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.”

Article 145(3) is not relevant in this case.

DECISION OF THE TRIBUNAL

6. The claimant, although Polish with little or no English, did go to see a solicitor to seek advice regarding her dismissal. A letter was written to the respondent but there appeared to be no further action taken by the solicitor in the matter, until the claim form IT1 was submitted some five days late. There appears to be no reason for the delay in submitting the claim to the tribunal, as the respondent replied to the solicitor’s letter of 24 May within a day or so. The tribunal find that the claim is out of time. The tribunal then considered whether there was any ground upon which time could be extended. The only ground open to the tribunal to extend the time, to allow a late application, is, if the tribunal considers that it was not reasonably practicable for the claimant to bring the claim within the time limit. This tribunal has heard no evidence of any difficulty that would have made it impracticable for the claimant to make her claim to the tribunal within the time allowed and accordingly this claim is dismissed.

Chairman:

Date and place of hearing: 14 November 2012, Belfast.

Date decision recorded in register and issued to parties:

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