Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2415/15

 

 

 

CLAIMANT:                          John Doran 

 

 

RESPONDENT:                  Beverage Plastics Limited          

 

 

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that it was reasonably practicable for the claimant to lodge his claim within the three month time-limit and it would not be reasonable in all the circumstances to extend time for his claim to be lodged.  The claimant’s claim is therefore dismissed.

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge McCaffrey

Appearances:

The claimant was represented by Mr P Vernon of P Vernon and Company Solicitors.

The respondent was represented by Mr J Kelly of Pinsent Masons LLP.

 

 

1.            The issue which I had to decide was whether the tribunal has jurisdiction to entertain the claimant’s claim of unfair dismissal and in particular whether it was not reasonably practicable for him to lodge his claim to the tribunal within the three month time-limit and if so whether the claim was lodged within a further reasonable period. 

 

2.            I gave oral reasons following the hearing and what follows is a summary of the reasons which I gave for my decision. 

 

3.            The claimant had been employed as a Process Operative by the respondent from 8 September 2012 until 26 or 27 March 2015 when his employment ended following a long term absence.  It was agreed that the claimant had not been in contact with the respondent during the period of sick leave from January 2015.  As a result of this, the respondent had written to the claimant on a number of occasions and finally indicated that if they did not hear from him, they would assume he had resigned his employment with the respondent.  It was agreed by the claimant in his evidence in chief and again in cross-examination that when he received the respondent’s letter of 26 March 2015, together with his P45 dated 27 March 2015 that he understood that his employment with the respondent had ended. 

 

4.            Given that the effective date of termination of the claimant’s employment was 26 or 27 March 2015 his claim of dismissal to the Industrial Tribunal should have been lodged on or before 27 June 2015 at the latest. 

 

5.            A claim of unfair dismissal should be brought within three months of the effective date of termination under the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 which provide as follows:-

 

“145(2)  Subject to paragraph 3, an Industrial Tribunal shall not consider a complaint until this Article unless it is presented to the Tribunal:-

 

(a)   before the period of three months ending with the effective date of termination, or

 

(b)   within such further period as the tribunal considers reasonable in the 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 ...”.

 

6.         The claimant had some contact with the respondent in the month of May.  He had responded to a letter (which was not opened to me) from David Horan (one of the Directors of the respondent) asking him what his intentions were.  The claimant had a telephone conversation with Shirley Dew from Human Resources and Mr Horan and subsequently sent a letter to Mr Horan as requested by him indicating that he would like to return to work for the respondent.  The claimant received no reply to that letter.

 

7.         In early July 2015 the claimant reached the conclusion that he was not going to hear any further from the respondent and decided to seek some further advice in relation to the matter.  He consulted his solicitor sometime in July 2015 and completed his application to the Industrial Tribunal on 28 July 2015, according to the signature and date on the form.  That form was not however received at the Office of the Industrial Tribunals and the Fair Employment Tribunal until 20 August 2015. 

 

8.         The claimant’s case was that he was not aware of the three month time limit for lodging a claim before the Industrial Tribunals, and that he felt that it was reasonable for him to hold off seeking advice as there was a possibility of him going back to work for the respondent in May.  He did not explain why he had delayed until late July before seeking advice nor could he explain why his claim form had not been lodged in the Industrial Tribunals until over three weeks after it was completed.  His solicitor did not offer any explanation either. 




9.         At the hearing I noted that in relation to an extension of time for the presentation of the claim of unfair dismissal, the test is whether it was “not reasonably practicable” to present the claim on time.  The employee must show that it was not reasonably practicable for him to present his claim on time and the burden of proving this rests firmly on the claimant.  Secondly, if he succeeds in doing so, the tribunal must then be satisfied that the time within which the claim was in fact presented was reasonable.    The test to be applied was set out by May LJ in Palmer and Saunders v South-end-and-Sea Borough Council [1984] IRLR 119 and what he proposed was a test of “reasonable feasibility”.  He stated as follows:-

 

“We think that one can say that to construe the words “reasonably practicable” as the equivalent of “reasonable” is to take a view that is too favourable to the employee.  On the other hand “reasonably practicable” means more than merely what is reasonably capable physically of being done - different for instance from its construction in the context of the legislation relating to factories ... perhaps to read the work “practicable” as the equivalent of “feasible” as Sir John Brightman did in Singh v Post Office 1973 ICRF 437 and to ask colloquially and untrammelled by too much legal logic - “was it reasonably feasible to present the complaint to the Employment Tribunal within the relevant three months?” - is the best approach to the correct application of the relevant sub-section.”

 

10.      In this case is the claimant was clear that he knew he had been dismissed at the end of March 2015.  He was unclear about the time limit for presenting his claim although he said he had telephoned Citizen’s Advice Bureau to try to make an appointment, but was not able to get an appointment quickly.  He then held off because of the correspondence with Mr Horan from seeking further advice for a period of some seven or eight weeks.  It does not seem from the evidence given that the claimant made any further attempt to contact the respondent to clarify whether in fact there would be a chance of re-employment.  He said himself that he would have been inclined to let matters drop only that his mother encouraged to pursue the matter.  He said that he then went to see Mr Vernon sometime (after his birthday on 8 July) in July, but the three month time-limit would by this stage already have expired.

 

11.       I make no criticism of the claimant’s evidence in relation to this matter.  He struck me as being entirely honest and forthright.  He was clear however that he understood at the end of March that his employment had ended.  He does not appear to have taken steps to seek any advice in relation to any claim he might pursue against his employer until late July and even then this was only at his mother’s urging.  The claimant gave me no concrete reason as to why he could not have lodged his claim within the appropriate time-limit, apart from holding off lodging a claim in the hope that there might be an offer of re-employment.  This may be considered as analogous (albeit somewhat tenuously) to invoking an internal appeals procedure.  It is clear however from the case law that unless there are  exceptional circumstances, the mere fact of invoking an internal appeals procedure is not sufficient to justify a finding that it was not reasonably practicable to present a claim in time (see Harvey on Industrial Relations and Employment Law Division P1 paragraph 253).  I am satisfied that it was reasonably practicable for the claimant to lodge his claim within the three month limit set out above.




 

12.       Even if I considered that it had not been reasonably practicable for the claimant to lodge his claim in time, I would then have to consider the further period of time within which the claim had actually been lodged.  The time limit for lodging the claimant’s claim expired on 27 June 2015 and the claim was actually lodged on 20 August 2015.  Within that period the claimant had sought advice from Mr Vernon in late July and signed a claim form dated 28 July 2015.  That claim form was not lodged for a further three weeks.  I do not therefore consider that the further period of time which the claimant took to lodge his claim was reasonable in all the circumstances.  Once the claimant had sought legal advice, it may be assumed that his advisors were aware of the relevant time limits and should have lodged the claim as promptly as possible, but this did not happen.

 

13.      In all the circumstances I do not consider it appropriate to extend time for the claimant’s claim in this case and his claim for unfair dismissal is therefore dismissed. 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:          21 January 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: