THE INDUSTRIAL TRIBUNALS
  
CASE REF:    1731/10

CLAIMANT:			James Hamilton

RESPONDENT:		Foyle Meats Limited

DECISION
The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal is dismissed as being out of time.

Constitution of Tribunal:
Chairman:		Mr Uel A Crothers
Members:		Ms Theresa Madden
			Mr Eddie Grant

Appearances:
The claimant was present and represented himself.
The respondent was represented by its Group Human Resources Manager, 
Leslie Otterson.

Issues

1.	The issues before the tribunal were as follows:-

(i)	was the claimant’s claim presented to the tribunal before the end of a period of three months beginning with the effective date of termination, or

	within such further period as the tribunal considers reasonable where it is satisfied that it was not reasonably practicable for the claim to be presented before the end of that period of three months?

(ii)	if the claim is in time, was the claimant unfairly dismissed?

Sources of Evidence

2.	The tribunal heard evidence from the claimant and from Mark Hamilton on his behalf, together with evidence from Mr Otterson and Julie Newell, Human Resources Manager, on behalf of the respondent.  The tribunal was presented with a bundle of agreed documents and received further documentation during the course of the hearing.  Both parties were afforded time to read the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South East Health and Social Care Trust (“Rogan”)  -  delivered 13 October 2009, and to obtain any advice thereon.  

Facts

3.	The tribunal, having considered the evidence insofar as same was relevant to the issues before it made the following findings of fact on the balance of probabilities:-

	(1)	The claimant was employed by the respondent from 20 October 2008 until the effective date of termination of his employment with one week’s pay in lieu of notice, on 15 January 2010.  The claimant was being paid Jobseekers Allowance at the rate of £65.45 per week from 18 January 2010 until the date of hearing.  He had sought further employment during the period up to the date of hearing but was unsuccessful.  It was common case that the claimant’s wages were £240.00 gross per week (£196.00 net).

	(2)	The tribunal considered the respondent’s dismissal and disciplinary procedures for misconduct.  The respondent had an attendance policy which was agreed with the Unite Union and which referred, for the purpose of this case, to short-term unrelated absence.  In paragraph 3 of the policy it is recorded as follows:-

			“3.  Short Term unrelated absence

			Advice will be issued under the following circumstances:

2 periods of absence in any 12 month period  -  recorded verbal warning.
			
			3 periods of absence in any 12 month period  -  written advice.

4 periods of absence in any 12 month period  -  final written advice.

5 periods of absence in any 12 month period  -  dismissal.

(Absence will be monitored on a yearly rolling basis).

Upon returning to work employees must complete a return to work form, which will be held in the Production office or the Training office.

			The above is the general rule, which will be applied.  It does not preclude however the taking into account of special circumstances and the employment record of the employee concerned”.

		Although the claimant had received induction in relation to this policy, he did receive a warning on 18 December 2008.  The documentation in relation to such warnings, signed on behalf of the respondent and by the claimant, stated that the warning would remain current on the claimant’s file for 12 months and that recurrence of the above or anything of a similar nature may result in further disciplinary action, which could include termination of employment.  The documentation also referred to a right to appeal any such decision within five working days and referred to the procedure being in accordance with the recognition and procedural agreement.

	(3)	The material time framework for the purposes of this case is from 
15 June 2009 until 11 January 2010 by which time, according to the respondent’s case, five such occurrences of unrelated absences occurred leading to the claimant’s dismissal for misconduct.

(4)	The tribunal is satisfied, as correspondence from the Northern Ireland Housing Executive dated 18 January 2010 revealed, that on Sunday, 10 January 2010 the claimant’s property sustained flooding.  The correspondence states as follows:-

“This is to confirm that the above property was subjected to a Burst pipe on 10 January 2010 (Immediate Call-Out) Locate Burst Pipe (ICO) as a result ceilings had come down and electric had to be checked throughout.  This work would have meant the tenant could not have stayed in the property due to no heat etc.”

(5)	The tribunal is further satisfied that upon his arrival at work on Monday, 11 January 2010, the claimant spoke to his manager, Ronnie McKeegan and told him what had happened.  He requested the day off in order to sort out repairs in his property.  Mr McKeegan stated to the claimant that he could go home if he wanted, but that he would be marked as absent and would receive a warning.  The claimant was subsequently dismissed at a disciplinary hearing held on 15 January 2010.  The disciplinary outcome letter, signed by Peter Barker, Production Manager, states as follows:-

	“Following your disciplinary hearing held on Friday 15th January 2010 regarding the following:

•	A further period of absence on 11th January 2010 whilst on a final warning for absence.

	I have made the decision to dismiss you for unacceptable levels of absence, 5 periods in any 12 months rolling period, in accordance with the Company Absence Policy.

This will take effect from Friday 15th January 2010, and you will receive your final pay, which will include a weeks pay in lieu of notice, any outstanding holiday pay and any outstanding monies following the completion of the appeals process.

You have the right to appeal this decision providing you do so within the next 5 working days and put the appeal in writing to the factory Manager stating the reasons for appeal”.

(6)	In his undated letter of appeal the claimant states as follows:-

“Ronnie said I could go home if I wanted and that it was up to me but I would be marked as absent and would receive a warning.  I knew I was on a final warning at the time and one more could result in me losing my job but under the circumstances.  I felt I had no option but to get the repairs in my flat sorted otherwise I would have stayed at work”.

(7)	The claimant was assisted at both hearings by his brother, Mark Hamilton who was also an employee of the respondent.  The appeal hearing, conducted by Leslie Irwin, Factory Manager, on 22 January 2010 upheld the original decision to dismiss the claimant for unacceptable levels of absence in accordance with the respondents’ absence policy.

(8)	In his claim form the claimant refers to anonymous individuals whom he claimed were treated more favourably than himself.  At the hearing the claimant also referred to another employee whom he claimed had been more favourably treated than himself.  Unlike the other two employees this individual had not had action taken against him because of alcohol consumption, but was absent from work.  The tribunal is satisfied that the respondent did not have this information before it when the decision to dismiss was made, and, in any event, the tribunal is not satisfied, on the evidence before it, that any of the three individuals was treated more favourably than the claimant.

(9)	The claimant consulted a Solicitor for legal advice regarding his case shortly after the appeal hearing.  The consultation was held around the end of January beginning February 2010.  Furthermore, when correspondence dated 12 February 2010 from the respondent was received by the claimant’s Solicitors, a further consultation was held in February 2010 with a Solicitor.  The tribunal is satisfied that the claimant was made aware from the date of the first consultation that he had a three month period from the effective date of termination of his employment in which to present a claim to the tribunal.  A week before the three month period was scheduled to expire in April 2010, a further meeting was held with the claimant’s Solicitor.  When the Solicitor explained the costs of taking his claim forward, including briefing Counsel, the claimant did not request the Solicitor to assist him further in  presenting a claim on his behalf, but allowed the three month period to expire.  He claimed that his Solicitor had not referred to the Labour Relations Agency, but that during a conversation with an ex-colleague’s mother on 3 July 2010, he was informed about the Labour Relations Agency, and contacted them by telephone.  He then presented his claim to the tribunal office on 8 July 2010.

The Law

4.	The law in relation to the time limits is set out in Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), and in relation to the right not to be unfairly dismissed, in Articles 126-130 of the Order.  The tribunal also considered the case of Rogan insofar as it applied to the case.  In the case of Palmer and Saunders v Southend-On-Sea Borough Council (1984) IRLR 119 CA it was held that the meaning of the words “reasonably practicable” lies somewhere between reasonable on the one hand and reasonably physically capable of being done on the other.  It was further held that the best approach is to read “practicable” as the equivalent of “feasible” and to ask “Was it reasonably feasible to present the complaint to the Employment Tribunal within the relevant three months”?  

Submissions

5.	The tribunal considered the respondent’s written submissions together with any oral submissions made by the claimant.

Conclusions

6.	The tribunal, having considered the evidence and applied the relevant principles of law to the findings of fact in relation to the first issue before it, concludes that it was reasonably practicable for the claimant to present his claim within the period of three months from the effective date of termination of his employment and therefore dismisses his claim.  The substantive issue relating to unfair dismissal does not require further consideration.

Chairman:

Date and place of hearing:  9 November 2010, Londonderry; 14 December 2010, 
				    Strabane.		

Date decision recorded in register and issued to parties: