JAdams v McNicholas Construction Services Ltd [2004] NIIT 5356_03 (9 September 2004)


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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> JAdams v McNicholas Construction Services Ltd [2004] NIIT 5356_03 (9 September 2004)
URL: http://www.bailii.org/nie/cases/NIIT/2004/5356_03.html
Cite as: [2004] NIIT 5356_3, [2004] NIIT 5356_03

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 5356/03

    APPLICANT: John Alexander Adams

    RESPONDENT: McNicholas Construction Services Limited

    DECISION

    The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to entertain the applicant's claim in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his claim.

    Appearances:

    The applicant did not appear at hearing and was not represented.

    The respondent was represented by Mr Adrian Colmer, Barrister-at-Law, instructed by Employment Law Consultancy.

    This is a decision in summary form.

    THE ISSUE

  1. The matter was listed for a preliminary hearing on the issue of whether the tribunal had jurisdiction to entertain the applicant's claim in view of provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his claim. Accordingly the tribunal had to decide that preliminary issue.

    2. THE TRIBUNAL'S FINDINGS

  2. In terms of the tribunal's findings of fact, the tribunal did not hear oral evidence but relied upon the documentation before it which consisted of the applicant's Originating Application dated 20 September 2003 and received by the Office of the Industrial Tribunals and Fair Employment Tribunal on 22 September 2003, and the respondent's Notice of Appearance thereto dated 17 October 2003 and received by the Office of the Industrial Tribunals and Fair Employment Tribunal on 20 October 2003. The applicant's claim was of 'unfair dismissal'. In the absence of any other evidence, the tribunal was faced with an Originating Application where the applicant contended that his employment had come to an end on 14 June 2003. The respondent's representative contended that the employment had come to an end the previous day, 13 June 2003. The tribunal accepted the respondent's contention that the employment had ended on 13 June 2003. As it was common case that the employment had commenced on 1 November 2000, the applicant had been continuously employed for a period of two complete years at the time the employment came to an end. The respondent's representative conceded that the employment had been summarily terminated, without notice or wages in lieu thereof, and the tribunal accepted that. The tribunal did not require to make any further findings of fact save for the foregoing. The tribunal heard a submission on the part of the respondent's representative that the applicant's complaint was out of time.

    3. THE TRIBUNAL'S DECISION

  3. An employee has a right not to be unfairly dismissed by his employer under Article 126 of the Employment Rights (Northern Ireland) Order 1996. A complaint in respect of that may be presented to an industrial tribunal under Article 145 of the Employment Rights (Northern Ireland) Order 1996. However, this complaint must be 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 in a case where it is satisfied that it was not reasonably practicable for the complaint to have been presented before the end of that period of three months.

  4. In this case the tribunal is satisfied that the final day of employment was 13 June 2003. The tribunal is required to establish the effective date of termination. In this case the tribunal considers the effect of Article 129 of the Employment Rights (Northern Ireland) Order 1996. The tribunal has determined that the determination of the contract of employment was without notice, as that much has been conceded by the respondent's representative. Article 129(1)(b) states that in relation to an employee whose contract of employment is terminated without notice 'the effective date of termination' means the date upon which the termination takes effect. The exceptions to that proposition contained in Article 129(2) (whereby the effective date of termination may be in certain circumstances extended) do not apply to the computation of time for the purposes of determining whether a complaint such as one of unfair dismissal is presented in time. Therefore, the tribunal determines that the effective date of termination is 13 June 2003, in this case.

  5. As the applicant's Originating Application was received by the Office of the Industrial Tribunals and Fair Employment Tribunal on 22 September 2003, the complaint is out of time, being presented after the expiry of the statutory period of three months beginning with the effective date of termination. As the tribunal did not have the benefit of the applicant appearing and presenting any further argument to it, it had no basis on which to determine that it had not been reasonably practicable for the complaint to have been presented before the end of the period of three months provided by statute. That being the case, the tribunal determines that the complaint is out of time and that it does not have any jurisdiction.

  6. For that reason, the applicant's complaint is dismissed, without further order.

    7. Chairman:

    Date and place of hearing: 9 September 2004, Belfast.

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/5356_03.html