INDUSTRIAL TRIBUNALS
CASE REF: 3582/03
APPLICANT: Stephen McMillan
RESPONDENT: John Henderson Food Distributors
DECISION ON A PRELIMINARY ISSUE
The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to entertain the applicant's claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his claim. Accordingly, upon this preliminary issue, the applicant's complaint is dismissed, without further order.
Appearances:
The applicant was represented by Mr T Boyce, Barrister-at-Law, instructed by Noel Wilson & Co Solicitors.
The respondent was represented by Mr P Coll, Barrister-at-Law, instructed by Hewitt & Gilpin Solicitors.
This is a reserved decision in summary form.
THE ISSUE
- In his originating application dated 25 July 2003 and received by the Office of the Industrial Tribunals and Fair Employment Tribunal on 29 July 2003 the applicant complained of 'unfair dismissal'. In its notice of appearance the respondent conceded that the applicant had been dismissed but it was denied that the applicant had been unfairly dismissed and it was contended that the application was 'statute barred'. Both the applicant and the respondent concurred that the effective date of termination of the contract of employment was 24 February 2003. The matter had been listed before the tribunal upon the following preliminary issue:-
"Whether the tribunal has jurisdiction to entertain the applicant's claim in view of the provisions of Article 145 of the Employment Rights (NI) Order 1996 regarding the time limit for presenting his claim".
Accordingly, the tribunal had to determine that preliminary issue.
THE TRIBUNAL'S FINDINGS
In consequence of the written and oral evidence adduced before it, the tribunal found the following facts:-
- At the outset of the hearing, the tribunal dealt with and disposed of an application on the applicant's part to have the hearing postponed. It was contended that the applicant was suffering from a medical condition which was material to the issue of reasonable practicability on his part to present his claim to the tribunal within the statutory time period. After hearing the submissions of the respective parties and noting that this postponement application was raised for the first time on the morning of hearing, the tribunal declined to postpone the case and the matter thus proceeded.
- It was not in contention between the parties that the applicant was an employee of the respondent, and that the applicant was employed for a sufficient period of time to attain, on foot of Article 140 of the Employment Rights (Northern Ireland) Order 1996, the right to claim unfair dismissal. Furthermore, as mentioned above, it was agreed that the effective date of termination of the said contract of employment was 24 February 2003. The tribunal finds that date to be the effective date of dismissal.
- Consequent upon a disciplinary hearing held on 11 February 2003, the applicant was dismissed from employment by the respondent. That decision to dismiss was upheld following an appeal hearing on 24 February 2003; the applicant was paid until that date. Approximately one week after his dismissal, the applicant phoned his shop steward, Mr Paul Reilly, and endeavoured to get in touch with his trade union official, Mr William Conduit of Amalgamated Transport & General Workers Union, telephoning Mr Conduit at least once every day over a period of approximately one week. Eventually, Mr Conduit obtained copy minutes of the disciplinary hearing and of the appeal and he arranged for the applicant to secure an appointment with solicitors who advised the trade union, Messrs Wilson & Nesbitt.
- On 17 April 2003, the applicant, together with Mr Reilly, attended Messrs Wilson & Nesbitt to discuss the merits of a possible claim against the respondent. The applicant contended that the solicitors did not advise him regarding pertinent statutory time limits nor that he should personally issue an application to the tribunal. He contended that they merely informed him that they were intending to write to Mr Conduit about the matter. In contrast to this, documentation seen by the tribunal appeared to suggest that both Mr Conduit's understanding and also that of the solicitors was that the applicant had been advised personally to issue proceedings.
- The applicant did nothing further of significance for a period of time (apart possibly from writing some type of letter to Mr Conduit - although the tribunal was not given specific details of that) until in late June 2003 the applicant spoke with Mr Conduit, the latter asking the applicant if he had filled in 'an IT1' (an originating application to the tribunal). By that point, if not before, the applicant was fully appraised of the issue of time limitations and he was informed that he was out of time and that the application ought to have been lodged with the Office of the Industrial Tribunals and Fair Employment Tribunal within three months of the effective date of termination of employment. Also, at the end of June 2003, the applicant of his own initiative telephoned Wilson Nesbitt, Solicitors, to enquire as to the position. Whilst the applicant contended that the solicitors merely enquired as to whether or not Mr Conduit had reverted to the applicant (whereas the copy documentation seen by the tribunal appeared to suggest that the solicitors' understanding of the situation was somewhat different) the essential point is that, without doubt, at latest by the end of June 2003 the applicant was fully aware of the necessity to issue his originating application within the statutory time limitation of three months and he was informed that he was by that stage out of time.
- The applicant then spoke with family and friends and also with Mr Reilly. Mr Reilly suggested that he should speak to an 'ordinary solicitor', as Mr Reilly put it. The applicant then waited a further period of time and on 25 July 2003 he attended an appointment with Messrs Noel Wilson & Co., Solicitors. On that day an Originating Application was completed and dated and that application was received by the Office of the Industrial Tribunals and Fair Employment Tribunal on 29 July 2003, by that stage considerably out of time.
- In aid of his case, the applicant did tell the tribunal about a medical condition from which he suffered and which the applicant contended resulted in a period of attendance at his doctor, with medication being prescribed. The applicant also was involved in a road traffic accident on 20 July 2003; however that does not appear to be very material to the issue of delay. The applicant's evidence about his medical condition was uncorroborated. On balance, the tribunal does accept that the applicant did suffer from a period of ill health requiring medical intervention. However the pertinent issue was whether or not that was sufficient to have a disabling or other material effect in terms of the applicant's capacity to present his application before the tribunal within the statutory period.
THE TRIBUNAL'S DECISION
- An employee has a right not to be unfairly dismissed by his employer under Article 126 of the Employment Rights (Northern Ireland) Order 1996. Under Article 145 of the said Order, a complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer. However, Article 145(2) of the said Order provides that an industrial tribunal shall not consider a complaint under that 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.
- In respect of this complaint, the effective date of termination of the contract of employment is 24 February 2003. The complaint was received by the Office of the Industrial Tribunals and Fair Employment Tribunal on 29 July 2003. It was therefore considerably out of time. The tribunal's first task is to establish whether or not it had been reasonably practicable for the applicant's complaint to have been presented within the statutory period. The applicant's case as presented to the tribunal upon this issue was two-fold. Firstly, the applicant contended that he had no knowledge of the statutory procedures and time limitations and was dependent, firstly, upon his trade union advisors and, secondly, upon the solicitors appointed to advise him, Messrs Wilson & Nesbitt. It is clear from the documentation seen by the tribunal that Messrs Wilson & Nesbitt assumed an advisory function on behalf of the applicant. However, it appears to be in contention as to who had responsibility for taking appropriate action consequent upon the consultation between those solicitors and the applicant. Furthermore, the applicant contended that, for medical reasons, it had not been reasonably practicable for him to have presented his complaint within time. In respect of that latter contention, whilst the tribunal does accept that the applicant was suffering from some type of medical condition around the material time, there is no evidence before the tribunal that this had a significantly disabling or other effect on the applicant such as to be of material significance. Indeed at a number of stages throughout this apparent illness the applicant appears to have been able to engage in effective communications and discussions. The tribunal therefore finds itself obliged to discount medical reasons as a reason in support of the applicant's contention.
- It is clear that the applicant did seek advice both from his trade union and from a firm of solicitors. The applicant argues that he was reliant upon guidance and assistance from both those sources and that was the substantive cause of the failure to submit the application in time. In this context, the tribunal looks to a number of relevant authorities. These authorities examine the question of whether or not an advisor's default (if default it was in this case, for the tribunal only has the applicant's contention) is to be attributed to the employee. That issue is no longer determinable solely by reference to whether or not the advisor was skilled or was engaged. (See Reilly –v- Tesco Stores Ltd [1980] IRLR 103). The issue of reasonable practicability is determined by examining all the circumstances. The tribunal looks back to the case of Dedman –v- British Building & Engineering Appliances Ltd [1973] IRLR 379 and to the commentary thereupon in the Reilly case. The tribunal must look at the circumstances of the applicant's ignorance or belief, including any advice taken and endeavour to identify the substantive cause. If either the applicant or his advisor were at fault these defaults are material. In the Dedman case the applicant was debarred from proceeding with his complaint because of the failure of his solicitors to warn him about the time limit. On the applicant's contention, that is precisely what the solicitors failed to do. The same could be said about the failure to advise on the part of the trade union official, as contended by the applicant. It cannot properly be said that the applicant was mislead by incorrect advice into misapprehending his rights. On the applicant's case, and taking account of all material facts and circumstances, the tribunal concludes that it was reasonably practicable for the applicant to have presented his complaint to the tribunal within the statutory time limitation. It must be said, furthermore, that even if the tribunal had taken a contrary view, it would have harboured considerable difficulty in finding that the applicant had presented his complaint to the tribunal within such further period as was reasonable, given the delay between the end of June 2003 and 29 July 2003 when the complaint was presented.
- On account of the foregoing reasons, the unanimous decision of the tribunal is that the tribunal does not have jurisdiction to entertain the applicant's complaint in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his claim. Accordingly, upon this preliminary issue, the applicant's complaint is dismissed, without further order.
Chairman:
Date and place of hearing: 9 January 2004, Belfast.
Date decision recorded in register and issued to parties:
