Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1334/15

 

 

 

CLAIMANT:                          Rui Óscar Barato De Oliveira     

 

 

RESPONDENTS:               1.         Zio Mediterranean Limited

                                                2.         Dritor Mula

                                                3.         Paulius Regina

                                                4.         Sharon Mula           

 

 

 

DECISION ON AN APPLICATION FOR REVIEW 

I hereby dismiss the respondents’ application for a review.

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Mr B Greene

Interpreter:                                                   Mr R Santos

 

 

Appearances:

 

The claimant was represented by Mr J Lannon, solicitor, of R J Ingram and Company Solicitors.

 

The respondent was represented by Mr T Martin.

 

 

 

BACKGROUND

1.         On 9 July 2015 the claimant presented claims for race discrimination, unlawful deduction from wages, non-payment of holiday pay, arrears of pay and breach of contract.  The respondents denied the claimant’s claims in their entirety and further asserted that the claimant’s claims were all out of time.  At a Case Management Discussion on 7 October 2015 Employment Judge Buggy identified five pre-hearing review issues in relation to the applicable time limits for bringing claims under the various causes of action that the claimant had alleged.  The pre-hearing review came on for hearing on 11 November 2015.  In its decision, issued on 8 December 2015, the tribunal exercised its discretion to extend time to 9 July 2015 to enable the claimant to continue with all his claims. 

 

2.         By letter of 21 December 2015 Mr Martin, on behalf of the respondents, sought a review of the tribunal’s decision.  Very helpfully he set out the details of the grounds of his review application in the letter of 21 December 2015. 

 

3.         A review hearing took place on 26 January 2016.  Mr Martin indicated that the respondents were seeking a review of the tribunal’s decision pursuant to Regulation 34(3)(e) of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, i.e. on the interests of justice ground.

 

Respondents’ Submissions

 

4.         Mr Martin relied on his letter of 21 December 2015 setting out the matters on which the respondents based their review application.  He amplified those grounds before the tribunal and answered questions that the tribunal posed to him.  The respondents’ submissions may be summarised as follows:-

 

(1)          The tribunal did not have any or adequate regard for the contention, advanced by the respondents, that the claimant, who admitted to being familiar with IT matters, failed to take the simple step of seeking information about his claims from the internet.  Mr Martin suggested that such a course of action was a natural and normal one in the modern world particularly for someone who was computer literate. 

 

(2)          That the claimant became aware in November 2014, through a claim brought by a colleague, that there were avenues open to him to deal with any employment rights that may have been violated.  Therefore Mr Martin contended his date of knowledge of his entitlement to pursue a claim started at that point. 

 

(3)          That the claimant had a meeting with Liz Connor from the Northern Ireland Council for Ethnic Minorities in or around 3 April 2015.  At that meeting,
Mr Martin contended, an application was prepared for submission to the Equality Commission for representation or support and consequently, in the respondents’ submission, the claimant was aware of his rights to pursue his claim in tribunal, if not from November 2014, by 3 April 2015.

 

(4)          The claimant did not provide any documentary evidence to support either his attendance with the police in or about March 2015 or his application to the Equality Commission for representation and support despite Judge Buggy’s ordering of him to produce documents upon which he intended to rely at a Case Management Discussion on 7 October 2015. 

 

(5)          That the period between the meeting of 3 April 2015 and 9 July 2015, when the claim form was lodged, of 14 weeks is excessive and therefore even if the claimant’s state of knowledge dates from 3 April 2015 that this period of time is too long before lodging a claim and therefore the tribunal should not have exercised its discretion in the claimant’s favour. 

 

Claimant’s Submissions

 

5.         Mr Lannon, not unsurprisingly, considered the tribunal’s decision to have been correct and thorough.  In support of that position he made the following submissions:-

 

(1)          That though the claimant’s claim form records the fact of an incident involving a colleague in November 2014 which led to an industrial tribunal claim it does not state when the claimant became aware of the incident nor was the claimant asked about that in cross-examination at the hearing. 

 

(2)          The suggestion that the claimant delayed for 14 weeks between 3 April 2015 and 9 July 2015 is not correct, he asserted.  The claimant was not aware on 3 April 2015 of his right to bring a claim.  He only became aware at a later date when the date of application was made to the Equality Commission for support.  However such a date was not known to the tribunal.  In any event the application to the Equality Commission for support, which was ultimately refused, indicates that the claimant was diligently trying to obtain information and taking steps to pursue a claim and therefore such actions should not be construed to his disadvantage.

 

(3)          If the claimant were ignorant of his rights he would not have any reason whatsoever to be seeking further information on Google.

 

(4)          In relation to the argument that the cogency of evidence is weakened with the passage of time Mr Lannon contended that whilst this is always a difficulty in any court case there was not any specific evidence before the tribunal that any particular witness would have particular difficulties with memory as memory capability varies from person to person. 

 

Conclusions

 

6.         The claimant’s claim form records at paragraph 7.4.

 

                        “In November, a former colleague also was forced to leave due to the abuse he suffered.  He went straight to a solicitor and his case will be in court in September 2015.”

 

            It was accepted by both parties that November is a reference to November 2014.  The claim form, which is the source of this information, does not tell the tribunal when the colleague brought a claim to the tribunal.  It merely asserts that it was scheduled to come on for hearing in September 2015.  Nor does the claim form indicate when the claimant became aware of the incident or a claim being brought by his colleague.  It is completely silent on these matters.  Neither was the claimant cross-examined about these matters at the hearing on 11 November 2015. 

 

7.         Therefore there is not an evidential basis for the tribunal to conclude that in November 2014 the claimant was aware of his right to bring a claim to a tribunal in circumstances where the claimant rejects that at this date he knew of his right to bring a claim.  Therefore the finding made by the tribunal in this regard at the pre-hearing review is a correct one.

 

8.         Judges in the superior courts have commented that if one is reasonably ignorant of a right to bring a claim there is absolutely no logical reason why one would seek advice or attempt to find out information about bringing a claim.  It seems to the tribunal that this also applies to researching one’s rights on Google and therefore the tribunal rejects that submission as a criticism of its decision or that it amounts to a failure in the decision by not specifically mentioning it. 

 

9.         In relation to the claimant’s meeting or meetings with Liz Connor from the Northern Ireland Council for Ethnic Minorities the claimant’s evidence to the tribunal was in the course of his direct examination as follows;-

 

                        Question:  “What action did you take to pursue a claim?”

 

                        Answer:  “After I was talking to her [Liz Connor] she said she was going to get more information about my case.  When she asked me about hours working, holidays and the way they treated me at work.  She helped me to make an application to the Equality Commission before the claim form.”

 

            The tribunal concluded at the pre-hearing review, and it has heard nothing to cause it to change its view of the evidence, that the statement by the claimant that Ms Connor was going to get more information about his case, indicated, on the balance of probabilities, that she was not aware of what right or rights he might have but was going to make enquiries.  The claimant’s answer is clearly a summary of a number of events that took place over a period of time.  The meeting with Liz Connor is in the context of the police having contacted her following his complaint to the police of having been threatened.  The tribunal further concluded from those circumstances that other meeting or meetings occurred arising from which an application was made to the Equality Commission for representation and support and ultimately a claim form was lodged.  In the absence of the specific dates when these events occurred and any exploration of the dates during cross-examination the tribunal cannot conclude, on the basis of the evidence before it, that these events occurred on 3 April 2015.  Rather it appears to the tribunal that they occurred over a period of time after 3 April 2015 but before 9 July 2015. 

 

10.      The tribunal accepts that copies of documents to and from the Equality Commission and the police in relation to the alleged threat received by the claimant might well have assisted it.  However such was not available to Mr Lannon who had come on record for the claimant shortly before the hearing on 11 November 2015.  The order made by Judge Buggy only ordered the production of documents upon which the claimant sought to rely.  He did not seek to reply on any of these documents at the hearing and therefore was not in breach of Judge Buggy’s Order.

 

11.      The tribunal therefore does not conclude that the period of time from which the claimant was aware of his right to bring claim in the tribunal and his lodging of his claim on 9 July 2015 was excessive.  The claimant had met with Ms Connor on 3 April 2015.  She then sought information for him and, in the tribunal’s view, returned and met again with him.  Following a further meeting or meetings with Ms Connor an application was made to the Equality Commission for Northern Ireland for support and or representation.  That was determined in the negative and the claimant then proceeded to bring his own claim which he lodged on 9 July 2015 with the assistance of Liz Connor.  All this occurred during a period of less than 14 weeks.  In the circumstances of this claim the tribunal had concluded that the claim form was lodged within a reasonable time for the purpose of considering the “reasonable practicability” test for all his claims, apart from race discrimination, and the “just and equitable” test for his race discrimination claim.  Nothing brought to the attention of the tribunal has caused it to change its conclusions.

 

12.      Accordingly the tribunal dismisses the respondents’ application for a review of its decision.  The claim will now be listed for a full hearing. 

 

 

 

Employment Judge:

 

 

Date and place of hearing:  26 January 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: