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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Keane v McNeilly & Ors [2006] NIIT 932_05 (16 May 2006) URL: http://www.bailii.org/nie/cases/NIIT/2006/932_05.html Cite as: [2006] NIIT 932_5, [2006] NIIT 932_05

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THE INDUSTRIAL TRIBUNALS

CASE REF: 932/05

CLAIMANT: Senan Keane

RESPONDENTS: 1. Fiona McNeilly

2. MDS Pharma Services

3. Jean Culloty

4. Michelle Wilson

5. Jennifer Teal

6. Nicola Jones

7. Cheryl Williams

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that it was reasonably practicable for the claimant to have presented his claim for constructive dismissal to the tribunal within three months from the effective date of termination of his employment on 19 April 2004. The claim for constructive dismissal is accordingly dismissed.

Constitution of Tribunal:

Chairman: Mr Crothers (Chairman sitting alone)

Appearances:

The claimant appeared in person and was not represented.

The respondents were represented by Miss Byrne of Cleaver, Fulton, Rankin, Solicitors.

1. The issue before the tribunal was as follows:-

Whether the tribunal has jurisdiction to entertain the claimant's complaint of unfair dismissal in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting a complaint.

2. The claimant gave evidence. The respondent did not call any witnesses. An agreed bundle of documents was presented to the tribunal.
3. The tribunal having considered the evidence made the following findings of fact:-

(i) The effective date of termination of the claimant's employment was 19 April 2004.

(ii) The request for an amendment to the existing originating application (case references 694/04 and 166/04FET) to include a claim of constructive dismissal was dated 23 February 2005 and received by the tribunal on 25 February 2005.

(iii) The claimant had been in the process of disciplinary proceedings when he tendered his resignation on 17 March 2004. He had previously received advice from the Equal Opportunities Commission concerning the application referred to above which was dated 11 March 2004 and presented to the tribunal on 16 March 2004 claiming sex discrimination and religious/political discrimination. The claimant named Mr Billy McCreight of the GMB Union as his representative on his application to the tribunal. He had had the assistance of Mr McCreight during the disciplinary process from January 2004.

(iv) The claimant was called to an investigatory interview on 10 February 2004 and was accompanied by his trade union representative, Mr McCreight. The claimant contested the accuracy of the statement in the minutes of the investigatory interview that he "felt there was a concerted effort forcing him into constructive dismissal". The claimant did not deny however that he knew of the expression constructive dismissal at the time of his resignation and understood it to mean "something like push and push until he resigns". The claimant denied having received any advice from Mr McCreight or indeed seeking any advice regarding a possible constructive dismissal claim or indeed what constructive dismissal meant. He claimed that he had ceased communication with Mr McCreight some time before 9 August 2004 when Mr McCreight wrote to him stating that he was unaware that the claimant was putting his name on the tribunal application as his representative. The tribunal finds that the claimant did have an adequate idea as to what constructive dismissal meant at the time of his resignation. His case was that he went to Spain from in or about 27 April 2004 until 10 November 2004 and was non-functional whilst there. However, he was able to apply for and attend job interviews in Spain.

(v) The claimant presented medical evidence from his General Practitioner, Doctor Carroll, dated 2 September 2005 which referred inter alia to the medication he was taking and his stress factors mostly associated with his work situation with the respondents. The claimant also furnished a letter from his Counsellor, Josephine McAlister, whom he had employed after returning from Spain. The claimant claimed that because of his medical condition it was not reasonably practicable for him to have presented his claim to the tribunal within three months from 19 April 2004 and that it was only during the course of counselling that he became aware that he had the grounds for a constructive dismissal case and resolved to pursue it following his last counselling session on 20 January 2005. He then wrote to the

tribunal requesting an amendment to his existing application to include constructive dismissal on 23 February 2005.

4. The respondents submitted that the case of Palmer and Saunders -v- Southend-on-Sea Borough Council [1984] IRLR 119 CA was directly relevant and that the tribunal should take into account the elements mentioned therein in considering the claimant's case. The respondents' Solicitor further submitted that even if the tribunal found that it was not reasonably practicable for the claimant to have presented his claim within three months from the effective date of termination the tribunal still had to consider whether it had been presented within a reasonable time thereafter. The respondent's Solicitor submitted that a delay of seven months in doing so was not reasonable.

The claimant in his submission highlighted the main points of his evidence and submitted that it was not reasonably practicable for him to have presented his constructive dismissal application to the tribunal within three months of the effective date of termination and that it was only reasonably practicable for him to do so after 20 January 2005 when his counselling ended. He further submitted that a request to amend the existing application on 23 February 2005 was reasonable being just over one month following the last counselling session. He then urged the tribunal to allow his claim as being within time.

5. The law in relation to this case is governed by Article 145(2)(a) and (b) of the Employment Rights (Northern Ireland) Order 1996 and by well established case law.
6. The tribunal, having carefully examined the evidence before it and having regard to the submissions made concludes that the claimant was aware of the potential of a constructive dismissal claim when he resigned on 13 March 2004. Given the background involvement of the Equal Opportunities Commission and Mr McCreight prior to this combined with the claimant's ability to attend job interviews whilst in Spain it concludes, having taken into account the medical evidence and the counsellor's report that it was reasonably practicable for him to have presented his claim within three months from 19 April 2006. The tribunal therefore dismisses the constructive dismissal claim.

Chairman:

Date and place of hearing: 16 May 2006, Belfast.

Date decision recorded in register and issued to parties: