Donnelly v Board of Governors of Gaelscoil Dhal Riada [2004] NIIT 9091_03 (14 May 2004)

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URL: http://www.bailii.org/nie/cases/NIIT/2004/9091_03.html
Cite as: [2004] NIIT 9091_3, [2004] NIIT 9091_03

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 9091/03

    APPLICANT: Bridin Maire Donnelly

    RESPONDENT: Board of Governors of Gaelscoil Dhal Riada

    DECISION

    The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to deal with the applicant's complaints and those complaints are dismissed. The tribunal orders the applicant to pay to the respondent the sum of £1,031.25 in costs of these proceedings.

    Appearances:

    The applicant was represented by Mr Tony Carlin of INTO.

    The respondents were represented by Mr R Shields, Barrister-at-Law, instructed by Michael Flanigan, Solicitors.

    This is a reserved decision in summary form.

    THE ISSUE

  1. The applicant's complaints in her Originating Application were of 'redundancy payment, payment in lieu of notice, back pay for loss of earnings'. The respondents contended that the applicant had been employed but had not been dismissed, having left and taken up employment with an alternative employer. The applicant's Originating Application was dated 20 October 2003 and was received by the Office of Tribunals on 22 October 2003. That Application contended that the applicant's employment with the respondents had come to an end in August 2002. On the face of it, therefore, the applicant's application was out of time and the tribunal had to determine the issue of jurisdiction as a preliminary issue.

    2. THE TRIBUNAL'S FINDINGS

  2. The respondents were the Board of Governors of an Irish Language School based in Dunloy, County Antrim. The applicant, who was a qualified Teacher, commenced employment in September 1996 with the respondents. It was not in contention that this employment was continuous until the employment came to an end. The precise date of the employment coming to an end was rather difficult for the tribunal to determine from the evidence but it seems to have been towards the end of August 2002 or perhaps at the very start of September 2002. It was not in contention that the respondents were experiencing considerable difficulties with funding for the school and the ability of the school to continue with its teaching activities to the full extent previously engaged in into the new term after the Summer vacation of 2002 was seriously in doubt at the material time. The tribunal examined the evidence which consisted of written correspondence and one press report and determined that, if not and quite probably before that date, the employment had most definitely come to an end by 1 September 2002.

  3. There was an issue as to whether or not the applicant had been dismissed, having been made redundant on account of the funding difficulty or, alternatively, whether the applicant, in anticipation that the employment would soon inevitably have come to an end, had voluntarily resigned to take up another post. Rather than resolve that issue (which was faced with some rather difficult evidential issues in view of the way in which the case was presented) the tribunal preferred to concentrate on the issue of time limitation, working back in regard to that from the date the Originating Application was received, 22 October 2003, and paying heed to the statutory time limitation applicable to the various elements comprised in the applicant's complaint.

  4. The applicant commenced her new post of employment with effect from 29 August 2002. The applicant contacted Mr Carlin of INTO, her trade union official, and Mr Carlin wrote to the respondents on 4 September 2002 claiming that the employment had been terminated on grounds of redundancy, that the applicant had not been paid any redundancy pay, had been given no pay in lieu of notice, and that failure to pay these outstanding monies would be a potential breach of the applicant's statutory rights.

  5. Mr Carlin wrote again to the respondents by letter of 20 September 2002 pointing out that the failure to pay the applicant her statutory entitlements might constitute a breach, as it was put, 'of the Employment Rights Order (NI) 1998 and the Wages Order'. Mr Carlin wrote what constituted further reminders on 26 March 2003 to the respondents and to Gaelscolaiochta in Belfast. Then on 7 May 2003, Mr Carlin wrote a letter to the respondents stating that he was advised by the Department of Employment & Learning that the member should make a claim for any payments outstanding against the National Insurance Fund under the Employment Rights (NI) Order 1996. Mr Carlin intimated that he intended to lodge proceedings in an Industrial Tribunal to seek a remedy in the matter and that he would seek costs and interest payments as part of any settlement set by the tribunal. That letter of 7 May 2003 was addressed to Gaelscolaiochta in Belfast.

  6. The tribunal particularly noted a letter dated 18 November 2002 addressed by Mr Carlin to the respondents' Chairman of Board of Governors requesting the respondents' proposals to resolve the matter within ten working days. The correspondence went on to state 'I must also advise that this letter is a final attempt to prevent a costly and prolonged Industrial Tribunal case as the only means left to our member to resolve her concerns'.

  7. There was no evidence that at the material time the applicant was in any way incapacitated or that she failed or ceased at all material times to have the benefit of representation of her trade union. She did however indicate that she was busy with a number of other unspecified issues in her life but did not go into any detail before the tribunal. It was clear from the evidence that the applicant saw the issue of tribunal proceedings as a very last resort and that she wished to endeavour to resolve matters by the avoidance of tribunal proceedings if at all possible.

    8. THE TRIBUNAL'S DECISION

  8. The tribunal considered the issue of time limitation and of the tribunal's jurisdiction in respect of the applicant's complaints. Working back from the date of receipt of the applicant's Originating Application, 22 October 2003, the tribunal noted that the first of the applicant's complaints was of 'redundancy payment'. Article 199 of the Employment Rights (Northern Ireland) Order 1996 provides that any claim for redundancy payment must be brought within a period of six months beginning with the "relevant date". That date is the date that - (a) the payment has been agreed and paid, (b) the employee has made a claim for the payment by notice in writing given to the employer, (c) the question in regard to the employee's right to, or the amount of, the payment has been referred to an Industrial Tribunal, or (d) a complaint relating to his or her dismissal has been presented to the tribunal under the Article 145 of the said Order of 1996. However Article 199(2) provides that the employee is not deprived of the right to a redundancy payment if, during the period of six months immediately following the period referred to as foregoing, the employee (inter alia) refers the question to an Industrial Tribunal. However the effect of all the foregoing means that any action must be taken within a maximum period of 12 months of the relevant date. The entitlement to redundancy payment would only arise if the applicant had been dismissed by the respondents. Making that assumption in this instance purely for the computation of time, even if there had been a summary dismissal, without notice, taking effect, say, at the very latest by 1 September 2002, the applicant's complaint in respect of redundancy payment having been received by 22 October 2003 is outside the period of 12 months referred to above. The tribunal therefore can not have jurisdiction in respect of that complaint under Article 199 of the Employment Rights (Northern Ireland) Order 1996.

  9. The applicant's next complaint was of 'payment in lieu of notice'. The contract in this case provides that the minimum notice of termination of employment shall be three months by the employee and one month by the employer unless otherwise mutually agreed. There is a statutory time limitation of three months provided by Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 to bring such complaints in matters of breach of contract. Any complaint relating to an employer's failure to make payment of pay in lieu of notice must be brought within three months of the effective date of termination of the contract. Again, the applicant's complaint was lodged well beyond the statutory time limitation of three months provided by Article 7. However, Article 7(c) provides that where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the foregoing period, the tribunal does have jurisdiction to entertain a complaint if it is presented within such further period as the tribunal considers reasonable. Taking account of the fact that the applicant approached her trade union and sought advice and assistance immediately upon the employment coming to an end, and noting the fact that by a letter of 18 November 2002 the applicant's trade union official had reached the point of threatening Industrial Tribunal proceedings, the tribunal fails to see how it was not reasonably practicable for the complaint to have been presented within the statutory period of three months. Because of that, the tribunal takes the view that it does not have jurisdiction to deal with the applicant's second head of complaint.

  10. The applicant's third complaint was of 'back pay for loss of earnings'. At the conclusion of the hearing the applicant's representative made it clear that this related to a claim arising from the year 2001 and that the applicant did not intend to proceed with that complaint. It was formally withdrawn by her representative and was dismissed by the tribunal.

  11. The tribunal at the conclusion of the hearing heard an application on the part of the respondents' representative for costs. The representative submitted that the members of the Board of Governors of the respondents were required, in a personal capacity, to bear the costs of being represented at the tribunal as there was no funding available to the Board in respect of this as the school had effectively closed. The submission continued that there were clear issues of jurisdiction here. The third complaint, back pay for loss of earnings, had been withdrawn at the conclusion of the proceedings when it had no reasonable or possible prospect of success whatsoever. The same applied to the other two complaints. The pay in lieu of notice complaint was very considerably out of time with no reasonable prospect of success. There was an absolute 12 months' jurisdictional time limitation period in which to bring any complaint for redundancy payment; this period had been exceeded by the time that the complaint had been lodged with the Office of Tribunals. The respondents' representative continued that, taking account of Rule 14 of the Industrial Tribunal Rules of Procedure 2004, the applicant in bringing the proceedings had acted unreasonably, and the applicant's actions in bringing the proceedings had been misconceived. The proceedings had at no time any reasonable prospect of success. The cost of the proceedings was £1,031.25 inclusive of VAT and Counsel's fee and that sum ought properly to be awarded in favour of the respondents on foot of Rule 14, it was contended.

  12. The applicant's representative submitted to the tribunal that the applicant had made every endeavour to obtain payment via correspondence and was reluctant to issue proceedings as she believed that the Board of Governors would act in an honourable fashion. If the Board of Governors had responded to the Department of Employment & Learning properly (which they had not done it was contended) the Department would have dealt with the matter and it would not have come before the tribunal at all. The only alternative was to have a tribunal decision that the applicant was properly made redundant. The tribunal noted that the applicant's representative did not specifically address the statutory time points in his submission.

  13. The tribunal considered the import of Rule 14 of the Industrial Tribunal Rules of Procedure 2004. The tribunal takes the view that the three complaints instituted by the applicant by way of her Originating Application had no reasonable prospect of success in view of statutory issues of time jurisdiction. As there was no reasonable prospect of success the proceedings were misconceived. In the bringing of such misconceived proceedings the applicant had acted in an unreasonable fashion. In failing to abandon proceedings and in requiring same to be pursued to a full hearing the applicant by her actions had exposed the respondents as former governors of a now defunct school personally to costs. Those costs had been quantified at a figure of £1,031.25 and the tribunal was satisfied that that figure, in itself, was not an unreasonable amount. The tribunal is obliged by Rule 14 to consider making an award of costs and gave that issue due consideration. The tribunal, considering all of the facts and the respective submissions, was unable to find any basis upon which it ought properly not to award the full amount of the costs incurred. The tribunal further determined that there was no fair or proper basis upon which it could ask the respondents who were faced with such misconceived proceedings to bear any part of the costs which they had thus incurred in the reasonable and proper defence of such proceedings. Accordingly, the tribunal determines that the full amount of the respondents' costs, the sum of £1,031.25, ought properly to be awarded on foot of Rule 14 of the tribunal's Rules of Procedure against the applicant and in favour of the respondents. Therefore the tribunal Orders the applicant to pay to the respondents the sum of £1,031.25 in costs of these proceedings.

    14. Chairman:

    Date and place of hearing: 14 May 2004, Belfast

    Date decision recorded in register and issued to parties:

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