Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  857/17IT

 

 

 

CLAIMANT:                          Michael McLaughlin

 

 

RESPONDENT:                  Higgins Auto Repair

 

 

 

 

PRE-HEARING REVIEW DECISION

The decision of the tribunal is that the claimant’s claim is dismissed for being out-of-time, and the tribunal has no jurisdiction to deal with it.

 

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge Browne      

                                   

 

Appearances:

The claimant represented himself.

The respondent was represented by Mr Magill, Solicitor of O’Hare Solicitors.

 

1.            The issue for the determine whether or not the tribunal has jurisdiction to determine the claimant’s claims for unfair dismissal on the grounds of unfair selection for redundancy, non-payment of notice pay, and non-payment of holiday pay.  I heard and considered submissions from the claimant on his own behalf, and submissions on behalf of the respondent, and I considered the written materials in the case, in finding the following facts and reaching the following conclusions.

 

2.            The relevant law on bringing claims of the type presented by the claimant is identical on each head of claim.  Article 145 of the Employment Rights (Northern Ireland) Order 1996 (ERO), dealing with unfair dismissal, makes clear that such claims must be presented within three months of the effective date of termination.  A tribunal does not have jurisdiction to deal with any such claim if it was presented outside that period, unless the tribunal is satisfied that it was not reasonably practicable to do so.  Even if it was not reasonably practicable, the tribunal may not deal with it if it considers that it was not presented within a further reasonable period.

 

3.            Article 145 of the Employment Rights (Northern Ireland) Order 1996 (ERO) states:

 

“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), 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.”

 

4.            The effective date of termination (EDT) of the employment is defined in Article 129 of ERO:

 

“129.- (1)     Subject to the following provisions of this Article, in this Part “the effective date of termination”-

 

(a)     in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

 

(b)     in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect...”

 

5.         Determination of the effective date of termination is a question of fact for the tribunal.

 

6.         The claimant from the outset acknowledged that his EDT was 11 October 2016, and that, by presenting his claim form on 8 February 2017, it was outside the statutory time period.  The statutory deadline for submitting his claim was 12 January 2017.

 

7.         He sought the assistance of the Labour Relations Agency some two weeks after sending a letter to his former employer on 4 January 2017.  The LRA informed him of the three month time limit, but the claimant was candid enough to admit to the tribunal that he already generally knew about the time limit from discussions with other people, including his parents, who are in business.

 

8.         Unfortunately, on 22 January 2017, the claimant was caught up in a major shooting incident in Belfast.  Whilst happily he was not the intended target, and nor was he injured, his car was slightly damaged.  There were a number of matters which required his attention afterwards, such as an insurance claim and discussions with solicitors, which the claimant advanced as being a ground upon which the tribunal could properly find that it had not been reasonably practicable to submit his claim form in time.

 

9.         The burden of proving that the claim could not have been presented in time rests upon the claimant.  The test to be applied by the tribunal is whether it was reasonably feasible for the claimant to do so.

 

10.      Whilst the tribunal has great sympathy with the claimant in being caught up in the shooting incident, it must be borne in mind that it occurred some ten days after the deadline for submission of his claim had passed.

 

11.      The claimant admitted that he was generally aware of the deadline at the time of writing his letter on 4 January 2017, and had been specifically informed by the LRA by around 18 January 2017, but still did not submit his claim until 8 February 2017.

 

12.      There was in my view nothing between his EDT on 11 October 2016 and the statutory deadline of 12 January, nor between 12 January and the incident on
22 January, which did not make it reasonably practicable for the claimant to lodge his claim.  I also find that the period of ten days between the passing of the deadline and the shooting incident, in the absence of any practical impediment to presenting his claim, was in itself not a reasonable period.

 

13.      The claimant has failed to satisfy me that it was not reasonably practicable to present his claim.  The tribunal therefore has no jurisdiction to deal with any part of his claim, and it is dismissed.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:     22 May 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: