Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2014/357_14IT.html
Cite as: [2014] NIIT 357_14IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 357/14

CLAIMANT: Sergejs Carjovs

RESPONDENTS: 1. Sew it Seams, Enniskillen

2. The Zipyard, Coleraine

3. Michael Ferris

4. Michael Smith

DECISION ON A PRE-HEARING REVIEW

The tribunal does not have jurisdiction to hear the claimant’s unfair dismissal, notice pay, holiday pay, failure to provide a statement of initial employment particulars and failure to provide itemised pay statements claims in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996, Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, Article 55(2) of the Employment Rights (Northern Ireland) Order 1996, Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998, and Article 43 (4) of the Employment Rights (Northern Ireland) Order 1996 regarding the time limits for presenting such complaints.

Constitution of Tribunal:

Employment Judge: Employment Judge Bell

Members: Mr B Schofield

Mrs T Creggan

Appearances:

The claimant appeared in person and represented himself.

The respondent did not appear and was not represented.

1. It was apparent from papers at the start of the substantive hearing that the claim was presented more than nine months out-of-time and appropriate that the time-point should be dealt with first.

ISSUES

2. The preliminary issue for the tribunal was as follows:-

(i) Whether the tribunal has jurisdiction to entertain the claimant’s claims of unfair dismissal, for notice pay, holiday pay, failure to provide a statement of initial employment particulars and failure to provide itemised pay statements in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996, Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, Article 55(2) of the Employment Rights (Northern Ireland) Order 1996, Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998, and Article 43 (4) of the Employment Rights (Northern Ireland) Order 1996 regarding the time limits for presenting such complaints ?

EVIDENCE

3. The tribunal considered the claim, response, documentation provided by the claimant and heard oral evidence from the claimant with the assistance of a Russian speaking interpreter.

FINDINGS OF FACT

4. The claimant has limited English.

5. The claimant’s employment as a stitcher based at the first named respondent’s premises in Enniskillen was terminated on 31 January 2013.

6. The claimant has a friend who speaks and understands basic English.

7. In February 2013 the claimant was referred by friends to the Citizens Advice Bureau (CAB) who he attended with, informed them of his situation and who wrote to the respondent on the claimant’s behalf. The claimant understood that he was advised that it could take three to four months for a response and did not recollect being advised of his right of making a claim to the Industrial Tribunal or of any time limit for doing so.

8. The claimant as a result of the loss of his job had to move out of the accommodation provided to him by his employer and stayed with his daughter until September 2013 when he moved into alternative accommodation. Due to his change of address the claimant checked a number of times whether there had been any correspondence received for him at his former address.

9. Following the loss of his job the claimant was most concerned that he find another job and so registered with a number of employment agencies and obtained a new job in May 2013. During his time out of employment the claimant felt depressed but did not seek medical assistance albeit he was short of money, was travelling a lot and the doctor with whom he had registered was in Belfast and was not convenient for him to attend. Whilst out of work the claimant applied for and successfully obtained Job Seeker’s Allowance.

10. In or around June 2013 in the absence of hearing from the CAB following his visit in February 2013 the claimant returned to the CAB at which time the claimant was advised to lodge a claim with the Industrial Tribunal and on their advice attended the office of the Industrial Tribunal’s to obtain an ET1 claim form, which he did with the assistance of a note prepared by them setting out the form he required.

11. In December 2013 the claimant’s daughter who had been feeling unwell for some time was diagnosed with cancer and is currently undergoing ongoing chemotherapy during which times when his daughter is in hospital the claimant assists in looking after his grandchild.

12. The claimant did not give consideration at any time to whether there might be a deadline within which he should deal with the ET1 claim form he had obtained in June 2013 and did not do anything further with it until his friend suggested to him approximately February 2014 that he should proceed with it.

13. The claimant’s claim was presented to the Office of the Tribunals on 6 March 2014.

14. On the claimant’s evidence he was aware from previous jobs that he had legal rights in respect of the matters he had raised in his claim form, namely unfair dismissal, notice pay, holiday pay, failure to provide a statement of initial employment particulars and failure to provide itemised pay statements but was not aware of there being a time limit for presentation of his claim to the Industrial Tribunal until the matter was raised at hearing.

THE LAW

15. Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 provides that an Industrial Tribunal shall not consider a complaint of unfair dismissal unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination, 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. Similar provisions apply for the presentation of claims to an Industrial Tribunal for breach of contract under Article 7 of the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994, unlawful deductions from wages complaints under Article 55(2) of the Employment Rights (Northern Ireland) Order 1996, holiday pay claims under Regulation 30(2) of the Working Time Regulations (Northern Ireland) 1998, and failure to provide a statement of initial employment particulars and failure to provide itemised pay statements under Article 43 (4) of the Employment Rights (Northern Ireland) Order 1996.

16. For the time limit to be extended the tribunal must first be satisfied that it was not reasonably practicable for the complaint to have been lodged within the three month time limit. Secondly, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. A tribunal must be satisfied on the issue of reasonable practicability before it considers whether the further period within which the claim was lodged was otherwise reasonable. It is the claimant’s duty to show precisely why it was that he did not present his complaint in time.

APPLICATION OF THE LAW TO THE FACTS

17. The claimant’s claim was presented on 6 March 2014 more than nine months out-of-time. On consideration of what was the substantial cause for the delay, the tribunal consider that the substantial cause as per the claimant’s evidence was ignorance of time limits. Ignorance is rarely an acceptable reason for delay and where it is, the ignorance itself must be reasonable. The claimant put forward that the factors which caused his lack of knowledge and delay in presenting his claim were his ignorance of the law, limited English, lack of a permanent residence causing difficulty receiving correspondence, limited time while pre-occupied with seeking new employment and accommodation, lack of funds for legal advice or an interpreter, his depression and his daughter’s illness. A claimant is generally expected to make suitable enquiries as to their rights and a claimant generally aware of their rights is then under an obligation to seek information and advice to enforce them. The claimant was aware of his right to pursue a claim to the Industrial Tribunal certainly by June 2013 approximately four months after his dismissal and some nine months before he presented his claim. On consideration of what knowledge the claimant should have had had he acted reasonably, whilst we might be persuaded by reason in particular of the language difficulty, loss of job and associated accommodation and his mental state that the claimant was reasonably ignorant of his rights and applicable time limits such that it was not reasonably practicable for the claim to be presented within three months of the effective date of termination, we do not consider on objective consideration of the factors causing the delay that the further nine months that it then took to present the claim was a reasonable period within which to then have presented the claim given that the claimant was in a new job in May 2013, was aware of and had obtained the claim form in June 2013,had moved into his own accommodation in September 2013, was aware from past experience that he had employment rights protected by law, had been capable despite his limited English of registering with a doctor, various employment agencies and of applying for job seekers allowance. In the circumstances we consider that it would have been reasonable to have presented his claim certainly within a month of moving accommodation, but not some five months later in March 2014.

18. On balance we in the circumstances of this case find that the complaint was not presented to the tribunal within such further period as the tribunal considers reasonable beyond the end of the period of three months from the effective date of termination. The tribunal accordingly does not have jurisdiction to entertain the claimant’s unfair dismissal, notice pay, holiday pay, failure to provide a statement of initial employment particulars and failure to provide itemised pay statements complaints in view of the provisions of Article 145 of the 1996 Order ,Article 7 of the 1994 Order , Article 55(2) of the 1996 Order, Regulation 30(2) of the 1998 Regulations , and Article 43 (4) of the 1996 Order in respect of the time limits for presenting such claims.

Employment Judge:

Date and place of hearing: 27 May 2014, Belfast.

Date decision recorded in register and issued to parties:

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