THE INDUSTRIAL TRIBUNALS 

CASE REF:  6832/09

CLAIMANT:	Sylwia Lis 

RESPONDENTS:	Central Florists Limited

DECISION

The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to determine the claimant’s claim of unfair dismissal because it was presented outside the statutory time limits. The tribunal declines to exercise its discretion to extend the time limit on grounds that it was reasonably practicable for the claimant to present her claim within three months from the effective date of termination.

Constitution of Tribunal:

Chairman:		Ms J Knight	

Panel Members:	Mrs M Gregg

                                 Mrs V Walker

Appearances:

The claimant was represented by Mr Michael Lavery Barrister-at-Law instructed by Arthur J Downey & Co. Solicitors.

The respondent was represented by Mr Mark McEvoy Barrister-at-Law instructed by Rosemary Connolly Solicitors.
Issues

1.	The issues to be determined by the tribunal were:

(1)	Whether the claimant presented her complaint of unfair dismissal to the Office of the Industrial Tribunal and the Fair Employment before the end of the period of three months beginning with the effective date of termination and if not;

(2)	Whether it would have been reasonably practicable for the claim to have been presented within three months of the date of dismissal, and if not;

(3)	Whether the claim was presented within a reasonable time thereafter, and if so;

(4)	Whether the claimant was unfairly dismissed by the respondent, contrary to Article 145 of the Employment Rights (Northern Ireland) Order 1996.

2.	The tribunal determined at the outset with the agreement of the parties’ Counsel that it was in the interests of justice that the tribunal should not deal with the time limit issues in isolation as a preliminary point but should hear the entire evidence in the case before reaching its conclusions.

Evidence

3.	The tribunal heard the evidence of Ms Sywia Lis, the claimant and Mr Andrew Imrie, the claimant’s boyfriend, and  witnesses for the respondent company, Mr Ciaran Heaney, Mrs Cecilia Heaney and Mr Peter Connolly. The tribunal also took into consideration an agreed bundle of documentation and the claimant’s agreed Schedule of Loss.

Findings of Fact

4.	The tribunal made the following relevant findings of fact to be proven on a balance of probabilities.

(1)	The claimant, Ms Sylwia Lis, lodged her originating claim of unfair dismissal with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 21 August 2009, stating that her employment ended on 5 May 2009. The claimant is a Polish national and was employed as a florist by the respondent company from 5 November 2004. The respondent company is owned by Mrs Cecilia Heaney and operates as a florist’s shop. Mrs Heaney and the claimant had a close working relationship and they socialised together outside work. The claimant was invited to family events at Mrs Heaney’s home. Mrs Heaney arranged accommodation for the claimant. The claimant had a clear disciplinary record. Mrs Heaney did speak to the claimant about sending texts during working hours but the tribunal was satisfied that this did not constitute a verbal warning under the disciplinary procedure which was included in the bundle of documentation.

(2)	The events which led to the termination of the claimant’s employment 	with the respondent occurred on 29 April 2009. At approximately 4pm, 	Mrs Heaney and her husband drove up and parked outside the shop. 	They observed the claimant outside the shop chatting to a friend, Mr 	DR. Mr and Mrs Heaney watched for a few minutes to see whether the 	claimant would go back into the shop. When they got out of the car, 	Mrs Heaney followed the claimant into the shop and Mr Heaney 	approached DR and asked him what he was doing outside the shop. 

(3)	Mr Heaney then went into the shop and asked the claimant to go 	upstairs as he wanted a word with her. The tribunal accepted the 	claimant’s evidence that Mr Heaney shouted at her that he did not want 	DR and a number of other named individuals, JM, GM and OM coming 	to the shop as they were known drug dealers in the area. He raised the 	fact that the claimant was seen socialising in a local bar with two of 	these individuals. The claimant accepted that she was acquainted with 	these individuals but denied any knowledge that they were involved in 	drug dealing. The tribunal was satisfied that Mr Heaney was angry with 	the claimant and that he suggested to her that by associating with 	these people she was causing a loss of business for the shop. The 	claimant who was upset and crying told Mr Heaney that she would in 	future avoid these people now that she knew what they got up to. 	Mrs Heaney 	was present during this exchange between the claimant 	and her husband but did not intervene.

(4)	Mr Heaney told the claimant not to repeat the conversation to anybody 	outside the shop or she would be in trouble and he then left the shop. 	The claimant and Mrs Heaney went downstairs and the claimant 	alleges that they had a further conversation and that Mrs Heaney 	suggested that if she repeated the conversation someone might come 	and shoot the claimant and she would be returned to Poland in a body 	bag.  Mrs Heaney left the shop at about 4pm to get ready for an 	evening out with her family at the Odyssey in Belfast.

(5)	At about 6pm Mr Heaney telephoned the shop and spoke to the 	claimant. The claimant’s case is that he told her again that if she 	mentioned the conversation they had had upstairs she really would be 	in trouble and that he “doesn’t need to have a Polish bitch like me in his 	place”.  The claimant was unhappy with what he said and rang Mrs 	Heaney on her mobile phone to ask her what was going on. She said 	that as she spoke she could hear Mr Heaney in the background saying 	not to answer and that Mrs Heaney hung up without speaking. The 	claimant immediately rang again and this time the call was answered 	by Mrs Heaney’s daughter who said that her mummy could not take the 	call as she was driving. Both Mr and Mrs Heaney denied that the 	claimant was called a Polish bitch and stated that such a thing would 	not be said in the presence of their daughter.

(6)	 The claimant and her work colleague left the shop at about 6.10pm. 	The claimant then telephoned DR and GM and told them about her 	conversation with Mr Heaney. Afterwards the claimant returned to the 	shop to collect some shopping. Mrs Heaney’s father, Mr Peter 	Connolly, who helped out in the shop and did deliveries, was still there. 	The tribunal accepted the claimant’s evidence that when she told him 	that she thought she would have to look for a new job because she 	could not continue to work in a place where they were 	treating her so 	badly. Mr Connolly indicated essentially that he did not wish to get 	involved. The tribunal did not find credible   Mr Connolly’s evidence	that the claimant told him that she was resigning because she 	had another job.

(7)	The claimant went home and at approximately 7.15pm received a 	further telephone call from Mr Heaney who said that he had just been 	informed by a colleague that he had received a text from JM stating 	that Mr Heaney had called JM a drug dealer. Mr Heaney told the 	tribunal that while they were at the Odyssey he received a phone call 	from his son who was at home to say that GM was outside the house in 	a van. They were greatly concerned for the safety of their son and 	property and telephoned Mr Connolly, who lives next door to take their 	son in and to secure their property. Mr Heaney told the claimant that he 	knew that she had repeated the conversation they had had in the shop 	and that she was to be suspended from her job and that she was not to 	come near the shop anymore. He said that she would receive a letter 	from his solicitor and he hung up. The claimant immediately rang Mrs 	Heaney who advised that it was between the claimant and her husband 	and repeated that the claimant was suspended and that she would 	receive a solicitor’s letter. Mr Imrie witnessed these telephone 	conversations and confirmed that the claimant was distressed. He 	advised her that she should go into the shop the next day and speak to 	Mrs Heaney to get it sorted out. 

(8)	The next morning at approximately 9.50 am, as the claimant was 	preparing to go into the shop to speak with Mrs Heaney, she received a 	call from a male caller at an unknown number who said “Hello, is that 	the Polish prostitute?” The claimant told the tribunal that she 	recognised the caller’s voice to be that of Mr Heaney. The claimant 	hung up but a few minutes later received a further abusive phone call 	from the male caller who said that as long as he was alive she 	would not find another job and that people would believe him, a 	respectable businessman, rather than her. He said that she would 	return to Poland quicker than she came here and that he would send 	someone to “sort her out”. The claimant hung up. She told the tribunal 	that she believed that the caller was Mr Heaney she inferred from what 	he said that she was not to go back to the shop and that she had been 	dismissed.

(9)	The claimant did not return into work and did not receive any 	communication from Mrs Heaney. The claimant told the tribunal that 	this confirmed her belief that she had been dismissed by the 	respondent. On previous occasions when she had not gone into the 	shop, Mrs Heaney had phoned her to find out why. The claimant told 	the tribunal that she sought advice from the Citizen’s Advice Bureau 	and her solicitor who, she said, advised her to request her P45 and P60 	as she only had 28 days to “set out her case”. The claimant telephoned 	Mr Heaney on 5 May 2009 and asked for these documents. Mrs 	Heaney wrote to the claimant on 6 May 2009 accepting “your verbal 	resignation to my father on Wednesday 29 April 2009 and your 	confirmation of your resignation to me on Tuesday 5 May 2009...” The 	claimant was paid wages up until 29 April 2009.

(10)	The claimant’s solicitor wrote to Mrs Heaney on 10 June 2009 disputing 	that the claimant had resigned and asserting that she was in fact 	unfairly dismissed, seeking reasons for the dismissal and requesting a 	copy of her contractual terms of employment within 28 days of the date 	of the letter.  The respondent’s solicitor replied on 7 July 2009 denying 	that the claimant was dismissed and reiterating that the claimant had 	resigned.

(11)	The claimant’s originating claim complaining of unfair dismissal was received by the Office of the Industrial Tribunals and the Fair Employment Tribunals on 21 August 2009, having been sent by first class post on 20 August 2009 by the claimant’s solicitor. The claimant’s signature is dated 19 August 2009. The originating claim form acknowledges that the claim is lodged outside the three month time limit but requests that the tribunal accept her claim as she had not received a letter from her solicitor asking her to attend to complete the originating claim form as she had moved address. The tribunal was told that the claimant’s solicitor had lost contact with the claimant from the beginning of July 2009 until 17 August 2009 because she had moved address to Kilkeel in early July 2009 and omitted to notify her solicitor of her new contact address. Her solicitor sent correspondence to the claimant at her friend’s house, where the claimant had been 	staying, but the friend had gone to Poland, not returning until 17 August 2009. The claimant confirmed to the tribunal that her solicitor had her mobile phone number.

The Law

	5.	An employee has the right not to be unfairly dismissed by his or her employer 	pursuant to Article 126 Employment Rights (NI) Order 1996 as amended. 	(“the 1996 Order”)

Article 145 of the 1996 Order provides that: 

(1) 	A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer. 

(2) 	Subject to paragraph (3), an industrial tribunal shall not consider a complaint under this 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.
    
Conclusions

6.	The claimant’s case was consistently that she was dismissed from her employment and that she construed from what Mr Heaney said during his telephone calls on 29 and 30 April to be words of dismissal in circumstances where Mrs Heaney apparently authorised his actions. The letter dated 10 June 2009 from the claimant’s solicitor to the respondent shows that the claimant’s instructions at that stage were unequivocally that the respondent had terminated her employment and that she considered that she was unfairly dismissed. The respondent denies that the claimant was dismissed but contends that she resigned. The tribunal did not accept that the claimant resigned on 29 April 2009 as per Mr Connolly’s evidence.  However the tribunal is satisfied that the claimant’s employment terminated with effect from 30 April 2009. It was conceded that by counsel for the claimant that her originating complaint was presented outside the three month statutory time limit contained in Article 145 of the 1996 Order, which expired on 29 July 2009. 

7.	The tribunal considered whether there were grounds to exercise its discretion
to extend the time for presenting the claim. The claimant must first show that it was not reasonably practicable to present her claim in time. The burden of proving this rests firmly on the claimant (Porter v Bandridge Ltd [1978] IRLR 271, [1978] ICR 943, CA). If she succeeds in doing so, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable. The test as to whether it was possible to present an originating claim within the statutory time limit is one of “reasonable feasibility”. (Palmer and Saunders v Southend-on-Sea Borough Council [1984] 1 All ER 945, [1984] IRLR 119.) 

8.	The reason advanced by the claimant for the late presentation of her claim was that she had lost contact with her solicitor because she did not inform him of her change of address around the beginning of July 2009. The tribunal considers that it was incumbent on the claimant to notify her solicitor of her change in address. The tribunal took into account that the claimant’s solicitor had her mobile telephone and could have telephoned her or sent a text when she did not respond to letters. The tribunal considers therefore the loss of contact was ultimately the responsibility of the claimant. The tribunal took into account that the claimant sought advice from both the Citizens’ Advice Bureau and her solicitor shortly after the termination of her employment and time limits for lodging the claim were discussed with her around this time. The claimant was under a misapprehension that the time limit was even shorter than the statutory three months but in any event she told the tribunal that she had left her case in the hands of her solicitor. The tribunal was satisfied in the present case that the originating claim could have been lodged within the three month time limit.

9.	For these reasons, the tribunal concluded that the claimant did not discharge her burden of showing that it was not reasonably feasible for her to lodge her complaint within the statutory time limit and it does not exercise its discretion to extend the time for presenting the claim. It is therefore not necessary for the tribunal to determine the third and fourth issues. The tribunal does not have jurisdiction to consider whether the claimant was unfairly dismissed.

10.	The claimant’s claim is therefore dismissed in its entirety.

Chairman:

Date and place of hearing:  28-29 January 2010, Belfast

Date decision recorded in register and issued to parties: