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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McMahon v Kulus & Ors [2005] NIIT 8880_03 (4 May 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/8880_03.html Cite as: [2005] NIIT 8880_3, [2005] NIIT 8880_03

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THE INDUSTRIAL TRIBUNALS

CASE REF: 8880/03

CLAIMANT: Tracey McMahon

RESPONDENTS: 1. Joyce Kulus

2. Northland Early Years Centre Limited

3. Department for Employment & Learning.

DECISION

The unanimous decision of the tribunal is that the claim be dismissed.

Appearances:

The claimant did not appear nor was she represented.

The first-named respondent appeared and represented herself, she also represented the second-named respondent.

The third-named respondent was represented by Mr P. Curran.

1. The tribunal gave an oral decision on the date of the hearing in the following terms.

The tribunal decided unanimously to dismiss the claimant's claim, having considered the papers in the matter including the fact that, on the papers, there was a time point that went to jurisdiction.

2. The issues in this case were:-

(a) whether the tribunal was satisfied that it was not reasonably practicable for the claimant to present her claim within three months beginning on the effective date of termination of her contract with the second-named respondent and, if not, whether she presented it within a reasonable time thereafter; and

(b) if the tribunal held in favour in respect of (a), whether she was entitled to succeed in her substantive claims.

3. The claimant's effective date of termination was 11 July 2003. Her claim is dated 6 October 2003 and was presented on 13 October 2003 and is, therefore, outside the three month statutory limit.
4. The tribunal wrote to the claimant on 21 October 2003 acknowledging receipt of her originating claim and in that letter also:

(a) referred her to Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and advised her that an industrial tribunal "shall not consider a complaint unless it is presented before the end of the period of three months beginning when the act complained of was done".

(b) stated that it would appear that her claim was outside the time limit as the act complained of occurred on 11 July 2003 and her claim was not received until 13 October 2003;

(c) informed her that a tribunal was empowered to grant an extension of time but only if satisfied that it was not reasonably practicable for the complaint to be presented within the time laid down; and

(d) informed her that it would be necessary for the time point to be resolved at the outset of the hearing.

5. The tribunal was informed by Mrs Kulus that the second-named respondent had stopped trading and is not in liquidation, as appears from the notice of appearance. Mr Curran agreed that this was so and the tribunal accepted that this was the position.
6. The hearing was fixed for hearing at 10.00 am on 4 May 2005 at Long Bridge House. The claimant did not appear, nor did anyone appear on her behalf. No communication was received from her, nor was any communication received on her behalf.
7. The notice of hearing was stamp-dated 18 March 2005. It is stated in the body of the notice that where a party cannot, or does not wish to, attend the hearing on the date fixed, or otherwise feels unable to attend, they should notify the Secretary to the Tribunals immediately and should indicate whether they wished the hearing to proceed in their absence or whether a postponement of the hearing is sought. The notice then goes on to deal with postponements.
8. Rule 27(5) of the Industrial Tribunal Rules of Procedure states that if a party fails to attend or to be represented at the time and place for a hearing for, in respect of this case, the purpose of determining substantive issues, the tribunal may dismiss or dispose of the proceedings in the absence of that party or it may adjourn the hearing to a later date.

Rule 27(6) provides that if the tribunal wishes to exercise this power, namely, to dismiss or dispose of the proceedings in the circumstances referred to, it must first consider any information in its possession which has been made available to it by the parties.

9. The tribunal did not hear evidence. It considered the papers including the originating claim, the notice of appearance, the notice of hearing (referred to at paragraph 7 above), the representations of Mrs Kulus and the letter referred to at paragraph 4 above. In the absence of any evidence by or on behalf of the claimant the tribunal could not be satisfied on the information before it that it was not reasonably practicable for the claimant to have presented her claim within the statutory time limit. The tribunal, therefore, dismissed the claimant's claim.

Chairman:

Date and place of hearing: 4 May 2005, Belfast.

Date decision recorded in register and issued to parties: