Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

  

CASE REF:    442/12

CLAIMANT:                           Sinead McGarry

 

RESPONDENT:                     Northern Ireland Ambulance Service Health and
Social Care Trust

 

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the claimant’s complaint of unfair dismissal was not presented within the prescribed time limits in circumstances where it was reasonably practicable to present it on time.  Further or in the alternative the complaint was not presented within such further period as the tribunal considers reasonable even if it were satisfied that it was not reasonably practicable to present it on time.

As a consequence the tribunal has no jurisdiction to consider the complaint and it is hereby dismissed.

Constitution of Tribunal:          

Chairman (sitting alone):      Mrs A Wilson

 

Appearances:

The claimant was represented by Ms P McCrissican, Barrister-at-Law, instructed by Donard King & Co, Solicitors.

The respondent was represented by Ms Eadaoin Ward, Solicitor of the Directorate of Legal Services, Business Services Organization.

 

 

THE ISSUE

 

1.       The issue for the tribunal was as follows:-

 

          Has the tribunal jurisdiction to entertain the claimant’s complaint of unfair dismissal in view of the provisions of Article 145 (2) of the Industrial Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order").  Article 145(2) provides 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) (paragraph 3 is not applicable in this case), 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.”

 

 

SOURCES OF EVIDENCE

 

2.       I considered the originating claim form, the response, a letter handed in by the parties, the oral testimony of the claimant, the oral testimony of Ms Ruth McNamara for the respondent and the submissions of both parties.

 

 

FINDINGS OF RELEVANT FACT AND CONCLUSIONS

 

3.       The claimant was employed by the respondent as an Ambulance Care Attendant from 1 August 2008 until her dismissal on 1 October 2011.

 

4.       The claimant contends that the effective date of her dismissal was 8 December 2011 being the date upon which she was informed that her internal appeal against dismissal was unsuccessful.

 

5.       Article 129 of the 1996 Order provides for the purposes of this case that the effective date of termination of employment in relation to an employee, whose contract of employment is terminated without notice, is the date upon which termination takes effect.

 

6.       The claimant's contract of employment was terminated without notice by letter dated 28 September 2011.  That letter stated as follows:-

 

                    "The decision of the Panel is that you shall be summarily dismissed from your post as an Ambulance Care Attendant from the date of this letter".

 

          It is conceded that this letter was received by the claimant on 1 October 2011 and accepted by the respondent that 1 October may be regarded as the effective date of termination.

 

7.       The letter of dismissal dated 28 September 2011 informed the claimant of her right to appeal the decision to dismiss and the claimant lodged an appeal in exercise of that right.  However this did not have the effect of suspending the dismissal and accordingly in accordance with the provisions of Article 129 of the 1996 Order I am satisfied that the effective date of dismissal is 1 October 2011.

 

8.       The date from which time began to run for the purposes of Article 145(2) is therefore 1 October 2011 and the primary time within which proceedings should have been presented in accordance with Article 145(2)(a) was 1 January 2012.  Proceedings were presented on 7 March 2012.

 

9.       The claimant advances a number of reasons for her failure to lodge proceedings in time.  It is her case that she was unwell throughout the relevant period, that she was unaware of her right to lodge Industrial Tribunal Proceedings and that she was unaware of time limits.  It is also her case that she was confident that her appeal against dismissal would be successful and she received assurances in this regard from Mr Quigley, her Trade Union Representative.  In these circumstances she did not wish to issues proceedings against her employer.

 

10.     The circumstances giving rise to the claimant’s dismissal were a source of great distress and acute embarrassment to her and as a result of these circumstances she became very depressed.  She attended her doctor who increased prescribed medication to treat her depression.  She was reviewed by her GP every three weeks and such was her GP’s concern that she was referred for counseling.

 

11.     The claimant's illness was such that she struggled to get out of bed on a daily basis and functioned at a basic level to care for her children.  She did not disclose the circumstances of her dismissal to her family and so as to maintain confidentiality she attended to the business of her appeal by handing over carriage of all associated administration to Mark Quigley, her Trade Union Representative.  She did however attend the appeal hearing and it was her evidence that she attended because her "job was at stake”.  The claimant received notice of the outcome of the appeal by letter dated 8 December 2011.

 

12.     The claimant relied upon Mr Quigley and the investigating officer Mr Keith Stuart for support during this time and took comfort from their assurances that the outcome of the appeal would be favourable.  She was not informed by Mr Quigley of her right to present Industrial Tribunal proceedings and was not aware of the time limits within which such proceedings must be presented.  She only became aware of time limits when she consulted Mr Donard King, Solicitor on 17 January 2012.

 

13.     It is the claimant's evidence given in cross examination that had someone told her of the time limits pertaining to Industrial Tribunal proceedings that she would have "done it" i.e. that she would have presented proceedings so as to comply with time limits.

 

14.     The claimant presented proceedings on 7 March 2012.

 

 

THE APPLICABLE LAW

 

15.     I considered Article 145 of the 1996 Order which provides that Industrial Tribunal proceedings must be presented before the end of the period of three months from the date upon which the act complained of occurred or 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.

 

16.     There are two limbs to this formula.  First, the claimant must show that it was not reasonably practicable to present her claim in time.  The burden of proving this rests firmly on the claimant.  Second, if she succeeds in doing so, I must be satisfied that the time within which the claim was in fact presented was reasonable.

 

17.     I considered relevant case law including John Lewis Partnership  v  A P Charman UKEAT/0079/11/ZT and Marks and Spencer PLC  v 
Williams-Ryan [2005] EWCA Civ 470 as referred to by Ms MCrissican.

 

          I considered Palmer and Saunders (appellants) v Southend-on-Sea Borough Council (respondents) 1984 IRLR 119 and Wall's Meat Co Ltd v Khan [1979] ICR 52 as referred to by Ms Ward.  I also considered Harvey on Industrial Relations and Employment Law paragraphs 187 to 267 and the case of Dedman v British Building and Engineering Appliances Ltd [1974] ICR 53.

 

18.     I considered the direction given by the Court of Appeal in Palmer and Saunders (appellants) v Southend-on-Sea Borough Council (respondents) in the following terms:-

 

                    “The meaning of the words “reasonably practicable” from a review of the relevant authorities, lies somewhere between reasonable on the one hand and reasonably capable physically of being done on the other.  To construe the words as the equivalent of “reasonable” would be to take a view too favourable to the employee.  But to limit the meaning of “reasonably practicable” to that which is reasonably capable physically of being done would be too restrictive a construction.  The best approach is to read “practicable” as the equivalent of “feasible” and to ask “was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months”.

 

19.     I considered the guidance and applied given by Lord Denning in Wall's Meat Co Ltd v Khan in the following terms:

 

                    ''It is simply to ask this question:  Had the man just cause or excuse for not presenting his complaint within the prescribed time?  Ignorance of his rights—or ignorance of the time limit—is not just cause or excuse unless it appears that he or his advisers could not reasonably be expected to have been aware of them.  If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences.”

 

20.     I am satisfied that the delay in presenting proceedings was due in the main to the claimant’s ignorance of her right to present a claim to an Industrial Tribunal coupled with her ignorance of the time limits within which this should be done.  I have taken into account that during at least a part of the period within which such proceedings should have been presented the claimant was unwell.  However I have had to take into account her evidence to the effect that had she been aware of the time limits within which proceedings should have been presented she would have done so i.e. presented proceedings within the time limit (see paragraph 13).  Further at all material times she was advised by her Trade Union representative and she managed her internal appeal with his assistance.  She attended her appeal hearing because her "job was at stake”.  In these circumstances I must conclude that she would also have presented Industrial Tribunal proceedings with his assistance had she been aware of the time limits.

21.     I have taken into account the claimant’s evidence that she was confident that the outcome of her internal appeal would be favourable.  It is her case that she was fortified in this confidence by the misplaced assurances of Mr Quigley.  Had her appeal been successful as anticipated proceedings would have been unnecessary and the claimant could have returned to work without what she perceived to be the embarrassment of having instituted proceedings against her employer?

 

22.     The decision in the appeal issued on the 8 December 2011.  This was still well within the primary time limit for presenting proceedings and so I find that it was reasonably practicable for the claimant to await the outcome of the appeal and still comply with time limits.  I am satisfied that the claimant’s misplaced reliance on the advice of Mr Quigley was a significant contributing factor for her failure to do so.

 

23.     Following notification of the unfavourable outcome of the internal appeal, the claimant followed the advice of Mr Quigley to “get Christmas over her” and then to contact her solicitor.  She contacted her solicitor on 17 January 2012 by which time the primary time limit had expired.

 

24.     I have been referred by Ms McCrissican to the cases of John Lewis Partnership  v  A P Charman (the John Lewis case) and Marks and Spencer PLC  v  
Williams-Ryan (the M & S case).

 

25.     The facts of the John Lewis case distinguish it from this case in a number of respects and most notably in that the claimant in this case was advised at all material times by Mr Quigley, an experienced Trade Union Representative, whereas the claimant in the John Lewis case was represented by his father who had neither knowledge nor experience of Industrial Tribunal practice or procedure.  I am satisfied that Mr Quigley as a skilled advisor was most probably aware of the time limits and if not he plainly should have been.  Therefore it seems to me that unlike the claimant in the John Lewis case, it cannot be said that the claimant was reasonably ignorant of the time limits.  Her ignorance was due to a fault on the part of Mr Quigley in which circumstances following the guidance referred to at paragraph 17, it cannot be said that it was not reasonably practicable for the claim to be presented on time.  In reaching this conclusion I have also taken into account the case of Dedman referred to at paragraph 24 of the M & S case.

 

26.     I have considered the M & S case.  It can be distinguished from the present case on its facts in that a case was made that the delay in presented proceedings was partly due to the claimant being given advice by her employers that was “insufficient and misleading” and upon which she relied to her detriment.  She also believed that she had to await the outcome of internal appeal procedures before presenting a claim to the tribunal.  I have no evidence to suggest that that was the case here and even if it was there was sufficient time to draft and present proceedings between the date of the appeal decision and the expiry of the primary time limit.

 

27.     I have concluded that it was reasonably practicable for the claimant to present her claim within the primary time limit.  However I have also considered whether in the alternative her claim was presented in such further time as was reasonable.

 

28.     The claimant instructed her solicitor on 17 January 2012, some six weeks after hearing that her appeal was unsuccessful and already three weeks past the expiry of the primary time limit.  Proceedings were presented to the tribunal on 7 March 2012.

 

29.     The claimant was advised to get Christmas over before contacting her solicitor but I have no evidence to explain why she did not contact Mr King earlier in January.  Additionally I have no evidence as to what transpired between 17 January 2012 and 7 March 2012.  In the absence of such evidence I must conclude that even if it was not reasonably practicable for the claim to be presented on time (which I do not find to be the case) the proceedings were not presented within such further time as I consider reasonable.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:     10 July 2012, Belfast.

 

Date decision recorded in register and issued to parties: