THE INDUSTRIAL TRIBUNALS

CASE REF:  1237/07

CLAIMANT:			Yvonne Lecky

RESPONDENT:		V P McMullin Solicitors

DECISION ON A PRE-HEARING REVEIW
The decision of the tribunal is that claim of unfair dismissal was presented outside the time limit prescribed by Article 145 of the Employment Rights (Northern Ireland) Order 1996 and the claim is therefore dismissed for want of jurisdiction.

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr N Kelly

Appearances:
The claimant was unrepresented and appeared in person with the assistance of her husband.
The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by V P McMullin, Solicitors.

THE ISSUE

(1)	The issue set down for determination at this Pre-Hearing Review by a Chairman sitting alone under Rule 18(1) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 was -

	“Whether the tribunal has jurisdiction to entertain the claimant’s complaint of unfair dismissal in view of the provisions of Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 and Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, if applicable, regarding the time limit for presenting the said complaint.”

RELEVANT FINDINGS OF FACT

(1)	The respondent is a solicitor’s practice and the claimant was a part-time book-keeper in their Londonderry office.  She was also at all relevant times a full-time student at the University of Ulster in Coleraine studying Environmental Science.  She worked for the respondent for a total of eighteen and three quarter hours per week and within that total, her hours and days worked were flexible to facilitate her studies.

(2)	Her final year at the University of Ulster commenced in September 2006.  In late August, she asked Mr James Sweeney, the managing partner of the respondent, for a career break for one year to allow her to concentrate on her final year’s studies.  Mr Sweeney agreed to consider this request and told her that he would have to discuss it with the other partners in the firm.  

(3)	In early September 2006, Mr Sweeney, who was ordinarily based in the respondent’s Letterkenny office, attended the Londonderry office and met the claimant.  Both the claimant and Mr Sweeney agreed that Mr Sweeney, at this meeting, said he could not keep her book-keeper’s job open for one year and that he could not, for practical reasons, fill it on a temporary basis for that year.  The claimant told Mr Sweeney that she had done secretarial work before and suggested secretarial work as an alternative.  The claimant with commendable frankness accepts that Mr Sweeney did not give her a guarantee of a secretarial post at the end of her year’s study.  He simply said that if such a post was available, he would give her first refusal.

(4)	The claimant and Mr Sweeney both agreed that Mr Sweeney during this meeting in September 2006 asked the claimant to stay on at work until a replacement was recruited.  She did so and her last day at work was 6 November 2006.

(5)	The claimant sought to argue before the tribunal that she interpreted Mr Sweeney’s remarks as indicating that there would “be something there for me” if she wanted to return to the respondent after completing her studies.  She stated “that is the way it came across to me”.  Given her clear evidence and the equally clear evidence of Mr Sweeney I do not accept that the claimant either concluded, or had grounds to conclude, that she had some guarantee that a post would be found for her if she wished to return to the respondent.  The claimant was unable to point to any secretarial post which was vacant or which was likely to fall vacant and she accepted that no dates for her return had been discussed.  Even without the claimant’s frank admission in evidence that Mr Sweeney had not guaranteed that a secretarial post would be made available for her if she wished to return, I would have thought it highly improbable that an employer would have made such an open ended commitment in such circumstances.

(6)	The claimant received her P45 in the post on 5 December 2006.  She accepted that she knew at that point that receipt of a P45 meant that her employment with the respondent had been terminated.  She had previously checked the position with the Inland Revenue and had been told that a P45 was not required during a career break.  

(7)	The claimant stated that she had did nothing in response to the P45 because she was busy with her studies, forthcoming tests and a dissertation.  She was also busy with Christmas.  She eventually telephoned Mr Sweeney in his Letterkenny office on 10 January, 19 January, 30 January and 2 February before eventually speaking to him on 6 February.  Mr Sweeney did not know what the claimant wished to discuss during these attempted phone calls and the claimant had not written to the respondent or put them on notice of any issue arising out of the termination of her employment.

(8)	During the telephone conversation on 6 February, Mr Sweeney told her that his recollection was that she had resigned to pursue her studies.  He had not guaranteed her a secretarial post if she wanted to return on completion of her studies but had simply said that if one was available, it would be offered to her.  He stated that he would check his notes.  Helena Nolan, the respondent’s Human Resources manager spoke to the claimant on 14 February and confirmed Mr Sweeney’s recollection.

(9)	The claimant stated that she then sought advice from the Labour Relations Agency.  She stated that she was advised to lodge a written grievance.  The claimant also stated to the tribunal that she had suggested to Helena Nolan on 14 February that she (the claimant) would put “it” in writing and that Helena Nolan had said “if I put it in writing they would consider something for me later on if a post became available”.  The claimant lodged a grievance letter on 28 February 2007.  

(10)	A meeting took place to discuss the grievance between Helena Nolan, Mr Sweeney, the claimant and her husband on 27 March 2007.  Nothing was resolved.  Mr Sweeney stated that the claimant had resigned.  The claimant stated that she felt that she had been given a career break. 

(11)	The claim to the tribunal was lodged on 31 May 2007.

THE LAW

(12)	Article 145(2) of the Employment Rights (Northern Ireland) Order 1996 provides;

		“(2)	Subject to paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to a 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.”

(13)	An Industrial Tribunal is not vested with the power to allow a claim to proceed although late whenever it considers it “just and equitable” to do so.  The power to disapply the statutory time limit under Article 145(2) is, as described in London Underground Ltd -v- Noel [1999] ICR 109 at page 117;

			“Very restricted.  In particular, it is not to be exercised, for example, “in all the circumstances”, nor even when it is “just and reasonable” nor even where the tribunal “considers that there is good reason” for doing so.  As Browne-Wilkinson J observed; “the statutory test remains one of practicability ---- the statutory test is not satisfied just because it was reasonable not to do what could be done.”

(14)	The Court of Appeal in Palmer -v- Southend-on-Sea Borough Council [1984] IRLR 119 CA determined that the meaning of the words “reasonably practicable” in the equivalent GB legislation lies somewhere between “reasonable” on the one hand and “reasonably physically capable of being done” on the other.  The Court determined that the best approach was to read “practicable” as the equivalent of “feasible” and to ask “was it reasonably feasible to present a complaint to the employment tribunal within the relevant three months?”

(15)	The onus of establishing that it was not reasonably practicable to commence proceedings within the time limit lies on the claimant (Porter -v- Baindridge Ltd [1978] ICR 372).

THE DECISION

(16)	I have concluded that the claimant resigned from her position with the respondent to pursue her studies at the University of Ulster and that her effective date of termination was 6 November 2006.  Whilst she sought to argue before the tribunal that she had been left with the impression that a career break had been agreed, she accepted in evidence that no guarantee of any secretarial or other post had been given to her by the respondent.  Indeed, without any indication of a pending vacancy or a start date, it is difficult to see how any genuine misunderstanding could have arisen in this matter.  

(17)	The claimant is not alleging constructive dismissal.  She alleges unfair dismissal.  The statutory grievance procedure was therefore not relevant.  Since she resigned, the statutory dismissal and disciplinary procedure is similarly not relevant.  I therefore do not have to consider the provisions of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

(18)	Time therefore began to run on 6 November 2006 and expired on 5 February 2007.

(19)	I have concluded that the claimant resigned her post and that finding, in the context of a claim of unfair dismissal would be sufficient to determine the matter.  However I am conscious that this is not a substantive hearing on the merits and that this is an interim hearing to determine only the issue set out in the notice for hearing.  While it was necessary for me to determine the effective date of termination to fix the date on which time began to run against the claimant and therefore it was inevitable, in the circumstances of this case, that I would have to determine whether the claimant had resigned or was dismissed, I am looking only at the issue before me today ie whether or not the claim, whether or not it was manifestly ill-founded, was within the time limit set out in Article 145 of the Order.

(20)	I have heard no evidence upon which I could conclude that it was not “reasonably practicable” or “feasible” for the claimant to have presented her claim to the tribunal before 5 February 2007 when the three month time limit for lodging that claim expired.  The claimant was aware on 6 November 2006 that her employment had been terminated.  The fact that she was busy with her studies and with Christmas does not mean that it was not reasonably feasible for her to have completed and lodged a claim form within the statutory period of three months.  The mere fact of being busy, without more, is not a sufficient basis for extending the time limit.  The claim was not lodged until 31 May 2007.  There was, in my view, no reason why the claimant could not have lodged a claim within the statutory period of three months and the claim is therefore dismissed for want of jurisdiction.  

Chairman:

Date and place of hearing:	22 October 2007, Londonderry.

Date decision recorded in register and issued to parties: