Mooney v Royal Mail [2005] NIIT 256_05 (17 August 2005)

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URL: http://www.bailii.org/nie/cases/NIIT/2005/256_05.html
Cite as: [2005] NIIT 256_5, [2005] NIIT 256_05

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    THE INDUSTRIAL TRIBUNALS
    CASE REF: 256/05
    CLAIMANT: Boden Patrick Mooney
    RESPONDENT: Royal Mail
    DECISION
    The decision of the tribunal is that the tribunal has no jurisdiction to hear the claim and it is dismissed.
    Appearances:
    The claimant was represented by his mother.
    The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.
    REASONS
  1. The originating application in this matter was received by the Office of Industrial

    2. Tribunals and the Fair Employment Tribunal on 26 January 2005. The claimant's dismissal had taken place on 14 September 2004. The application was therefore out of time, leaving the tribunal without jurisdiction unless the claimant could show that it had not been reasonably practicable for him to lodge the application within the time limit.
  2. There was no dispute about the facts. The claimant, prior to his dismissal, had

    3. been suspended with pay for a period. He had attended a disciplinary interview at which he had sought the assistance of his trade union who failed to provide it. He was dismissed by letter on 14 September 2004 and thereafter received no pay. He lodged an appeal and again sought the assistance of his union. A union official from Scotland attended to assist him at the appeal in October. At that time he gave the claimant a note or guideline in the form of a letter issued by the Communications Workers' Union for its staff. The claimant was not, in fact, a member of the union but his evidence was that the union official who did assist him handed over this letter in October after the appeal had taken place. The appeal was unsuccessful. The claimant had expected the result of the appeal fairly quickly but did not receive any advice as to the result of the appeal until 8 December 2004. He signed his originating application to the tribunal on 16 December 2004 and, according to the claimant's mother, the document was posted on that date. The tribunal finds, therefore, that even had the document been delivered in the ordinary course of post on 17 or 18 December 2004 it would still have been out of time. In the event, for whatever reason, it did not arrive until 26 January 2005.
  3. The claimant himself said that he became aware at about the time of the appeal

    4. that he could sue for unfair dismissal but was unaware at any time that there was any time limit involved. The first he knew of a time limit, he said, was when the tribunal wrote to him following the lodging of his application to indicate to him that it was out of time.
    The claimant's mother indicated that she had obtained a Department of Trade and
    Industry leaflet about employment rights which did mention a three month time limit but which led her to believe that the time limit began to run after the appeal process had concluded. This seemed sensible to her and her evidence was that she continued to believe this to be the case up to and including the time she assisted the claimant to complete the originating application and lodge it.
  4. Essentially, both these claims amount to a plea of ignorance of the relevant legal provisions. Such a proposition is getting more difficult to advance given the length of time for which unfair dismissal legislation has been in force and widespread knowledge and understanding by the public of the system. In the Wall's Meat Company Limited -v- Khan [1978] IRLR 499 it was noted by Shaw LJ that 'mere ignorance' of the time limit will not ordinarily amount to reasonable impracticability. In the same case Brandon LJ indicated that it might be difficult for an applicant to satisfy a tribunal that he behaved reasonably if he failed to make suitable enquiries about time limits once he became aware that it was possible for him to claim. In this case it is clear from the claimant's own evidence that he did become aware that he had a right to claim for unfair dismissal at least at the time of his appeal in October 2004. Furthermore, the guideline/letter which the claimant indicated he had received from the union official who was assisting him with his appeal and which was produced by the claimant to the tribunal contained a number of clear statements.

    5. First that employees who believe they have been unfairly dismissed could seek a legal remedy by complaining to the tribunal.
    Secondly that all applications to the tribunal must be received within strict time limits.
    Thirdly that the form must be lodged with the tribunal office not later than three calendar months starting the date the individual's employment ended and fourthly that these time limits applied even where an employee was engaged in running an appeal.
    It may be that neither the claimant nor his mother read this document with sufficient care to note these statements but that cannot be used to justify a continuing state of ignorance of the relevant rules. It is clear to the tribunal that as of October 2004 the claimant had been given a document which made the entire position clear and that this document was available to his mother who was assisting him as well. Neither of them can, thereafter, claim ignorance of the relevant rules. As ignorance of the rules was the only ground put forward as justifying the lateness of the application it cannot succeed. The application must fail and accordingly the tribunal has no jurisdiction to deal with the claim.
    Chairman:
    Date and place of hearing: 17 August 2005, Belfast.
    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2005/256_05.html