Duffy v Property Management Services [2002] NIIT 2587_01 (18 November 2002)

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URL: http://www.bailii.org/nie/cases/NIIT/2002/2587_01.html
Cite as: [2002] NIIT 2587_01, [2002] NIIT 2587_1

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 2587/01

    APPLICANT: Michael Duffy

    RESPONDENT: Property Management Services

    DECISION

    The unanimous decision of the Tribunal is the Tribunal determines that it does not have jurisdiction to deal with the applicant's complaints. The applicant's complaints are accordingly dismissed, without further Order.

    Appearances:

    The applicant was represented by Mr R Donaghy, Barrister-at-Law, instructed by P R Hanna, Solicitors.

    The respondent was represented by Ms U Burns, Solicitor, of Tughan & Co, Solicitors.

    THE ISSUE

  1. The applicant's complaint to this Tribunal was of 'unfair dismissal; breach of contract; unlawful deduction of wages'. By Order dated 23 January 2002, a Tribunal dismissed that part of the applicant's case which related to the complaint of unfair dismissal. The matter was then listed for a preliminary hearing on the issue of whether or not the applicant's claim for breach of contract was outside the statutory time limits. The Tribunal accordingly had to determine the issue of its jurisdiction to hear and to determine the applicant's complaint.

    2. THE TRIBUNAL'S FINDINGS

    In consequence of the written and oral evidence adduced before it the Tribunal found the following facts:-

  2. The applicant commenced employment on 29 May 2000 with the respondent as a Store Manager. Certain terms of that employment relating to bonus were in dispute. A disciplinary hearing concerning the applicant was convened by the respondent and this took place on 23 March 2001. The applicant was not in attendance. The outcome of this disciplinary hearing was that the applicant was dismissed from employment by the respondent on that date. The respondent wrote a letter to the applicant dated 23 March 2001, stating that the applicant had been dismissed and that he would be paid up to and including 23 March 2001, plus one week's pay in lieu of notice and any holidays which had accrued. There was some delay in the applicant receiving payment. On 29 May 2001 the applicant received from the respondent a payment accompanied by a wages advice slip in which document the payment tendered by the respondent was described as 'final payment'.

  3. Regarding the matter of dispute, the applicant maintained that, in addition to his annual pay, an annual bonus of £2,000.00 had been agreed orally at the time he took up this employment. The applicant stated that that bonus was agreed to be payable in four quarterly instalments each year. The respondent denied that such any such arrangement had been agreed either expressly or by implication, or existed at all under the contract of employment.

  4. In the days just preceding his dismissal, the applicant had sought advice from the Citizens' Advice Bureau and the Labour Relations Agency; the applicant was unable to provide precise dates as to when this advice was received by him. The applicant also consulted with, and obtained advice from, a firm of Solicitors appointed under the terms of a legal expenses insurance scheme. Again, the applicant was unable to provide dates of consultation with those Solicitors, but he did confirm that he had attended the Solicitors in question on at least two or three occasions. The applicant also confirmed that he had promptly brought to the attention of the Solicitors the relevant information and documentation concerning his dismissal, and concerning the final instalment of wages received by him, and he had instructed the Solicitors regarding any material dates. The applicant's Originating Application in this matter was received by the Office of the Industrial Tribunals and the Fair Employment Tribunal on 16 July 2001.

  5. The effective date of termination of the applicant's contract of employment with the respondent was 23 March 2001. It should be mentioned that the applicant was certified sick by his Doctor for a period of time in April and in May of 2001. However, on his own evidence as to extent of any illness, the applicant was not, it would appear, suffering from any disabling illness which would be material in regard to the Tribunal's determination concerning the matter of the applicant's capacity to meet any relevant statutory time limits.

    6. THE TRIBUNAL'S DECISION

  6. As mentioned, the effective date of termination of the applicant's contract of employment was 23 March 2001. In regard to the applicant's breach of contract claim, under Article 3 of the Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order 1994, an employee may bring proceedings before an Industrial Tribunal for the recovery of damages or any other sum if the claim is within the jurisdiction of the Industrial Tribunals (Northern Ireland) Order 1996 and one which a Court in Northern Ireland would have jurisdiction to hear and determine, and the claim arises or is outstanding on the termination of the employee's employment. Article 7 of the said 1994 Order provides that a Tribunal shall not entertain such a complaint unless it is presented within a period of three months beginning with the effective date of termination of the contract giving rise to the claim. That statutory period of three months expired, in this case, on 23 June 2001. The applicant's complaint, having been presented on 16 July 2001, is therefore out of time.

  7. Article 7 of the said 1994 Order provides that where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented in time, it may be presented within such further period as the Tribunal considers reasonable. The Tribunal, having considered the evidence in regard to the matter, cannot determine that it was not reasonably practicable for the applicant's complaint to have been presented in time. The breach of contract alleged by the applicant appears to relate to his non-receipt of money alleged to be contractually due to him by the respondent. The reason for the Tribunal taking the view that it does is that the applicant received from the respondent what was expressly and clearly described as his 'final wages' on 29 May 2001. At that point in time, the applicant had been in receipt of legal advice, and he continued to receive legal advice at that time. The applicant promptly appraised his Solicitors of the relevant facts and information, including dates. The applicant was not suffering from any disabling illness or any other disability preventing his proper attendance to these matters. Whilst there was a delay in payment of the final instalment of wages, by the time those wages were received the applicant had been aware of his dismissal for some weeks and the delay or non-receipt of wages would have been quite apparent to him. When he received the payment, any shortfall would have been quite apparent. Materially, at the date of receipt of the final instalment of wages, the applicant still had from 29 May 2001 to 23 June 2001 to present his complaint before the expiry of the statutory time limit. The Tribunal saw no good reason why it would not have been reasonably practicable for the applicant to have presented his complaint in time.

  8. In regard to the applicant's complaint of unpaid wages, Article 55 of the Employment Rights (Northern Ireland) Order 1996 provides that a worker may present a complaint to a Industrial Tribunal in respect of an unlawful deduction of wages. That complaint must be presented within a period of three months beginning with the date of payment of the wages from which the deduction was made or, in respect of a series of deductions, the last deduction in the series. The Tribunal notes the argument presented by the applicant that the quarterly bonus payments alleged to be due under contract were not paid, and this constituted a series of deductions, and that time would run from the date of the last deduction. However, the tribunal must look to the evidence before it and to the fact that the applicant must satisfy the tribunal both that the bonus arrangement under the terms alleged by him actually existed, and, furthermore, as to the date or dates upon which any bonus payments actually fell due. Upon the evidence before it, the Tribunal is unable to determine with any degree of certainty at all that there was indeed such an arrangement for contractual bonus, and certainly there is insufficient evidence to draw any conclusion at all as to any agreed arrangements for periodic payments. That being the case, the Tribunal is obliged to conclude that the applicant's complaint is out of time, taking into account Article 55 of the said 1996 Order.

  9. In somewhat similar terms to the statutory provision referred to above relating to a claim in contract, Article 55(4) of the said 1996 Order provides that where the Industrial Tribunal is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the relevant period of three months, the Tribunal may consider the complaint if it is presented within such further period as the Tribunal considers reasonable. Here, the Tribunal takes the same view of Article 55(4) as the view that has been indicated above in regard to the contract matter. The Tribunal, upon the facts, cannot determine that it had not been reasonably practicable for the applicant to have presented his complaint within the statutory period.

  10. In view of the foregoing, the Tribunal determines that it does not have jurisdiction to deal with the applicant's complaints. The applicant's complaints are accordingly dismissed, without further Order.

    11. Chairman:

    Date and place of hearing: 18 November 2002, Belfast

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2002/2587_01.html