Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/2367_12IT.html
Cite as: [2013] NIIT 2367_12IT, [2013] NIIT 02367_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2367/12

CLAIMANT: James Mills

RESPONDENT: National Car Parks Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal (Chairman Sitting Alone) is that the claimant’s claims are dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Ms J Knight

Appearances:

The claimant did not appear and was not represented.

The respondent was represented by Mr Michael Lambe of Collinson Grant Ltd.

1. The issue to be considered by the tribunal was whether the claimant’s claims were lodged within the relevant statutory time limits and if not whether that time should be extended.

2. At the outset of the pre-hearing review I decided to proceed in the absence of the claimant in accordance with the overriding objective dealing with cases justly. I am satisfied that the claimant was made aware of hearing by an amended notice of Hearing which was sent to him by the Office of the Tribunals on 11 January 2013 and which was not returned by Royal Mail. No communication was received by or on behalf of the claimant concerning the reason for his non-attendance prior to the start of the hearing which was delayed until 10.30 am.

3. In disposing of the proceedings I took into consideration the claimant’s originating claim form, the respondent’s response, a letter from the claimant to the Office of the Industrial Tribunals and the Fair Employment Tribunal dated 7 January 2013 and documentation to which I was referred by Mr Lambe during the course of his submissions.

4. Having carefully considered the information before me I reached the following conclusions. The claimant’s originating claim form was lodged with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 22 November 2012 for notice pay, holiday pay and arrears of pay. The effective date of termination of his employment was 26 July 2012. Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 provides that an industrial tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented

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

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within (the applicable period), within such a further period as the tribunal considers reasonable.

5. The time limit for presenting the claimant’s breach of contract claim therefore expired on 25 October 2012. There is no dispute between the parties and the claimant acknowledges on the face of his claim form that the originating claim was indeed presented out of time.

6. The issue was therefore whether I should exercise discretion to extend the time limit. The burden is on the claimant to satisfy the tribunal that it was not reasonably practicable for him to present the claim from within three months of 26 July 2012, and if so that it was presented with such further period as the tribunal considers reasonable.

7. The claimant of course did not attend the hearing. However I have carefully considered the claimant’s letter of 7 January 2013 in which he sets out his reasons for lodging his originating claim outside the three month time limit. He states that this was because the respondent did not respond in a timely fashion to his request for documentation. He stated “If NCP had supplied me with the evidence from the disciplinary hearing as requested, which I had never signed nor received a copy of as entitled, I would have been able to submit this claim much earlier.” However, I have also considered other correspondence between the parties and in particular a letter dated 27 July 2010 from the claimant to the respondent which is headed “Appeal against termination of employment/unfair dismissal”. In a letter dated 30 August 2012 the claimant proposes that if the respondent pays him in respect of notice pay annual leave and travel claim “it will be the end of the matter with claim preclusion”.

8. I am satisfied that the claimant was aware at the earliest stage, of the facts giving rise to a potential claim before the Industrial Tribunal. I am not satisfied in the circumstances that the respondent’s delay, as alleged, was the cause of the late submission of the originating claim.

9. Therefore, the claimant has not discharged the burden at the first stage and I decline to exercise my discretion to extend the statutory time limit. That being the case the tribunal does not have jurisdiction to consider the claimant’s claims for breach of contract further which accordingly are dismissed.

Chairman:

Date and place of hearing: 5 February 2013, Belfast.

Date decision recorded in register and issued to parties:

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