Michalak v J D Wetherspoon PLC [2010] NIIT 04345

THE INDUSTRIAL TRIBUNALS

CASE REF: 4345/09IT

CLAIMANT: Stanislaw Michalak

RESPONDENT: J D Wetherspoon PLC

DECISION

The unanimous decision of the tribunal is:-

1. That the claim of unfair dismissal was lodged out of time and it was reasonably practicable to lodge the claim in time and the tribunal therefore does not have jurisdiction to determine this claim. The claim of unfair dismissal is therefore dismissed.

2. That the claim of race discrimination was lodged out of time and the tribunal was not persuaded that it was just and equitable to extend the time limit and the tribunal therefore does not have jurisdiction to determine this claim. The claim of race discrimination is therefore dismissed.

Constitution of Tribunal:

Chairman: Ms. J Turkington

Members: Mr. J Dunlop

Mr. P Kearns

Appearances:

The claimant appeared at the hearing and represented himself with the assistance of a Polish interpreter, Miss Schmidt.

The respondent appeared and was represented by Mr Boyd, Barrister-at-Law, instructed by the Legal Department of J D Wetherspoon PLC.

The Claims

1. The claims were:-

(a) a claim of unfair dismissal; and

(b) a claim of discrimination on grounds of race

The Issues

2. In order to determine whether it had jurisdiction to hear the claimant’s claim of unfair dismissal, the tribunal had to decide whether this claim was lodged within the statutory time limit and, if not, whether the tribunal should exercise its discretion to extend time for submission of such a claim.

3. In the event that the tribunal found that it did have jurisdiction to hear and decide the claim of unfair dismissal, the tribunal had to determine whether the claimant was dismissed by the respondent on or around 14 September 2008.

4. It was accepted by the respondent’s representative that, if the tribunal found that the claimant was dismissed, then the statutory dismissal procedure was applicable in this case. He further accepted that the statutory procedure had not been followed. The respondent’s representative therefore accepted that, in the event of the tribunal finding against the respondent in respect of issues 2 and 3 above, such dismissal was automatically unfair.

5. The claimant confirmed at the outset of the hearing that his claim of race discrimination was only about his alleged dismissal by the respondent.

6. In order to determine whether it had jurisdiction to hear the claimant’s claim of race discrimination, the tribunal had to decide whether this claim was lodged within the statutory time limit and, if not, whether the tribunal should exercise its discretion to extend the time for submission of such a claim.

7. If the tribunal determined that it did have jurisdiction to hear the claim of race discrimination, the tribunal would then have to decide whether the claimant was dismissed by the respondent and, if so, whether such dismissal was on ground of the claimant’s race.

Identity of the respondent

8. At the beginning of the hearing, the Chairman raised the issue of the correct identity of the respondent. It was agreed by both parties that the correct respondent to the claim was J D Wetherspoon PLC and the title of the proceedings was amended accordingly.

Sources of Evidence

9. The tribunal heard oral evidence from the claimant and Mr Darren Niven on behalf of the respondent. The parties also referred the tribunal to a number of documents in the tribunal bundle.

Contentions of the Parties

10. In his claim form and in his evidence at the hearing, the claimant contended that he was effectively dismissed by the respondent’s manager Ryan Curran on or around 14 September 2008. The claimant also contended that this dismissal was on grounds of the claimant’s race, namely his Polish nationality.

11. The respondent’s representative contended that both the claimant’s claims of unfair dismissal and of race discrimination had been lodged outside the respective statutory time limits and that there was no basis on which the tribunal should exercise its discretion to extend time. The respondent’s representative also contended that the claimant had not been dismissed on 14 September 2008 as he alleged. Rather, the respondent contended that the claimant had resigned. The respondent also contended that, if the tribunal concluded that the claimant was not dismissed, then it followed that his claim of discriminatory dismissal on racial grounds must also be dismissed. However, the respondent’s representative accepted that, if the tribunal was against him in relation to his other contentions, then the claimant would have been subject to an automatically unfair dismissal since the statutory dismissal procedure was clearly not followed in this case.

Facts of the Case

Having considered the evidence of the claimant and the respondent and having considered the documents referred to in evidence, and the submissions made by the parties, the tribunal found the following relevant facts:-

12. The claimant came to Northern Ireland from his native Poland in early September 2005 and took up employment in the respondent’s licensed premises at the Central Bar, Carrickfergus on 9 October 2005. The claimant’s first job with the respondent was cleaning the toilets in the bar two hours per day, a total of 14 hours per week. After a short time, the claimant asked the manager for more hours and, for a period of time, he worked 20 hours per week.

13. Once again, the claimant asked for more hours and, for a time, he worked a few extra hours in the kitchen and later he did some work cleaning glasses in the bar in the evenings. This pattern of work continued for around two years. At this time, the manager of the Central Bar was Jim and the claimant got along well with him.

14. The claimant then looked for other work and, in April 2008, he began working at another bar in Carrickfergus in the mornings. This meant that, from around June 2008, the claimant was only working as a cleaner in the respondent’s bar on Friday and Saturday evenings cleaning glasses and other cleaning duties – a total of eight hours per week on average. The claimant was paid at National Minimum Wage rate, £5.62 per hour. There was never any criticism of the claimant’s work or attendance and, in January 2007, the claimant received a letter from the respondent congratulating him on achieving 100% attendance during 2006.

15. In August 2008, the claimant received from HM Customs and Revenue a demand for payment of a substantial sum due to an over-payment of tax credits.

16. Around August 2008, there was a new manager at the Central Bar, namely Ryan Curran. On the evening of Friday 12 September 2008, the claimant was working in the Central Bar carrying out his duties as usual. He was working in the back room of the bar when he was approached by Mr Curran who gave a direction to the claimant. At first the claimant did not understand what Mr Curran wanted him to do. Then he realised that Mr Curran wanted him to clear cigarette butts from around the tables and chairs outside the bar.

17. In the course of this discussion, Mr Curran asked the claimant how long he had been working at the Central Bar. At first the claimant had difficulty in understanding, but then the claimant replied nearly three years. The tribunal is satisfied that, in the course of this conversation, Mr Curran said something about the claimant’s limited ability in English. The tribunal accepts the claimant’s evidence that towards the end of this discussion, the claimant said to Mr Curran “I look for new job – we speak Saturday – no problem.”

18. The claimant carried on working as usual for the remainder of that shift and also attended for work and worked as usual on the next day Saturday 13September 2008. The claimant and Mr Curran did not speak to each other that day. On the Saturday, the claimant noticed that his name was not on the rota for the next week.

19. On Monday 15 September, the claimant was on his way home from his job at the other bar when he saw Mr Curran going to a shop opposite the Central Bar. The claimant spoke to Mr Curran and asked why his name was not on the rota for the next week. Mr Curran told the claimant that he (the claimant) had said that Saturday would be his last day of work, in other words, Mr Curran said that the claimant had resigned. The claimant maintained that this was not true. There was a further discussion between the claimant and Mr Curran, but it was made it clear to the claimant that he was no longer working at the Central Bar.

20. On Friday 19 September, the claimant put on his uniform as usual and went to the Central Bar at 8 p.m. as he usually did for work. He asked where the manager was and went to speak to Mr Curran. The claimant told Mr Curran that he had come to work. Mr Curran told the claimant that he was not working there any more, that he had resigned. There was little or no further discussion between the claimant and Mr Curran and the claimant then left the bar.

21. The next day, the claimant went to work at the other bar as usual and spoke to the manager. He told the manager that he was finished at the respondent’s bar and the owner then agreed to give the claimant more hours. The claimant began working in the other bar most Thursday evenings and five hours every Friday and Saturday evening. Therefore, following the end of his employment at the Central Bar, the claimant was working more hours at the other Bar and his earnings were higher than they had been at the Central Bar.

22. The claimant then sought assistance to write a letter to the respondent. The claimant referred in his evidence to attending an Institution in Carrickfergus. The tribunal believes this is likely to have been the Citizens Advice Bureau (CAB). The assistance of a Polish interpreter was obtained and a grievance letter was sent to the respondent on 2 October 2008. In this letter, the claimant stated that on Friday 26 September 2008, the manager of the Central Bar informed him that he was no longer employed the reason being that the claimant spoke little English. He also said that he had since been taken off the rota and received his P45. The claimant indicated that he felt he had been treated this way because of his lack of English and that he had been discriminated against because of his ethnicity. The claimant accepted at the hearing that the date of 26 September given in this letter was wrong, the correct being 12 September.

23. The respondent replied by letter dated 13 October 2008 inviting the claimant to a grievance hearing on 16 October with Darren Niven, Area Manager of the respondent. The claimant was informed of his right to be accompanied by a work colleague or a trade union representative. After this letter was received by the claimant, a representative of the CAB contacted Mr Niven to ask whether the claimant could bring an interpreter to the meeting.

24. The claimant attended the respondent’s premises in the centre of Belfast for the grievance hearing on 16 October. He was not accompanied and did not bring an interpreter as he could not afford one. The meeting was conducted by Mr Niven and Mr Phil Annett of the respondent was also present. The meeting commenced, but it became clear to Mr Niven that he and the claimant were having difficulty in communicating in English. Mr Niven then left the meeting in order to try to find someone who could act as interpreter. He returned to the meeting with a Polish lady who was employed in the respondent’s premises in Belfast who was able to act as interpreter.

25. The meeting then proceeded. The claimant was asked to outline his grievance and was also asked what he wanted. The claimant did not indicate clearly to Mr Niven what he wanted. Mr Niven offered the claimant his job back at the Central Bar and explained that Mr Curran no longer worked for the respondent, but the claimant indicated that he did not want to return to work for the respondent.

26. Mr Niven then wrote to the claimant on 28 October 2008 in order to confirm the outcome of the grievance. Mr Niven’s conclusion was that the claimant had resigned from his job with the respondent. He also reiterated that he was happy for the claimant to return to work for the respondent and that Mr Curran no longer worked for the company, but this offer had been refused by the claimant. Mr Niven also concluded that the claimant had not been treated less favourably on grounds of his race.

27. The claimant sent a further letter to Mr Niven of the respondent on

1 December 2008. The claimant returned to what he referred to as the Institution (the tribunal believes to be the CAB in Carrickfergus) to obtain assistance in writing this letter. In the letter, the claimant apologised for his delay in sending this letter which he said was due to difficulties in finding a translator. The claimant reiterated that he considered he was dismissed from his employment with the respondent. The claimant also raised various other points. In order to resolve his grievance, the claimant invited the respondent to compensate him for loss of earnings, unfair dismissal, race discrimination and injury to feelings. He concluded by saying that if a positive response was not received by 12 December, then he would seek further advice as to how to progress his grievance “externally”. The claimant accepted in cross-examination that whilst he was receiving advice and assistance in relation to this letter, he had been given a blank tribunal claim form.

28. Mr Niven of the respondent replied to the claimant’s letter of 1 December 2008 by letter dated 15 December reiterating his conclusions as set out in his previous correspondence of 28 October.

29. The claimant’s job at the other bar in Carrickfergus ended on 21January 2009 and the claimant then signed on for Jobseekers Allowance.

30. The claimant required further advice in relation to his grievance with the respondent and he was able to obtain advice from the Northern Ireland Council for Ethnic Minorities (NICEM), having learned about NICEM from the internet. He attended at NICEM where he filled in the tribunal claim form with their assistance and sent it in to the tribunal office. The claim form was received in the office on 20 March 2009.

Statement of Law

Statutory time-limit for claim of unfair dismissal

31. The statutory time limit for a claim of unfair dismissal is set out in article 145(2) of the Employment Rights (Northern Ireland) Order (“the Order”). This provision states that:-

“An industrial tribunal shall not consider a [claim of unfair dismissal] 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 claim to be presented before the end of that period of three months”.

32. By article 129 of the Order, the effective date of termination of employment where the contract is terminated without notice is the date on which the termination takes effect.

33. Where a claim is presented outside of the statutory time limit, the claimant must show that it was not reasonably practicable to present his claim in time. In the case of Porter v Bandridge 1978 ICR 943, the Court of Appeal said that “this imposes a duty [on the claimant] to show precisely why it was that he did not present his complaint [on time].” It is clear from the case law that ‘reasonably practicable’ means ‘was it reasonably feasible to present the complaint to the [industrial] tribunal within the relevant three months”? Further, in the case of Walls Meat Co Ltd v Khan [1978] IRLR 459 the Court of Appeal stated:-

“The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance.”

34. If the tribunal is satisfied that it was not reasonably practicable to present the claim in time, it must then go on to consider the distinct question whether the claim was then presented within a reasonable time thereafter.

35. Where the statutory dismissal procedure is applicable, the time limit for presentation of a claim is extended by a further three months (to six months in total) where the employee had reasonable grounds for believing, when the original three month time limit expired, that a dismissal or disciplinary procedure was being followed in respect of those matters (regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004) (“the Dispute Resolution Regs”).

Statutory time limit for claim of race discrimination

36. Pursuant to article 65 (1) of the Race Relations (Northern Ireland) Order 1997 (“the RRO”), the normal statutory time limit for presentation of a claim of race discrimination is that the claim must be presented before the end of the period of three months beginning with when the act complained of was done. The normal time limit can be extended to six months provided the employee has raised a statutory grievance within the normal three month time limit.

37. By Article 65(7) of the RRO, a tribunal may nevertheless consider any such claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so. The phrase “in all the circumstances of the case refers to the circumstances relating to why the claim was lodged late – Hutchinson v Westward Television Ltd 1977 ICR27 . In the case of Chohan v Derby Law Centre 2004 IRLR 685, the EAT held that, when exercising its discretion to extend time, the tribunal ought to have regard, by way of guidance, to the factors set out in the [equivalent of] the Limitation Act 1980. Therefore, the tribunal should have regard to the prejudice which each party would suffer as a result of the decision reached and all the other circumstances of the case, including:

(a) the length of, and reasons for, the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

Burden of proof in relation to disputed dismissal

38. There was a dispute in this case as to whether the claimant had been dismissed by the respondent. In such a case, the burden of proof rests with the claimant to satisfy the tribunal that he was dismissed. The position is described in Harvey on Industrial Relations and Employment Law (Div D I A para 201) as follows:-

“If the fact of dismissal is disputed, it is for the employee to satisfy the tribunal on this point. If he fails to do so, he will lose his case.”

Discrimination on grounds of race

39. By article 3(1) of the RRO, a person discriminates against another if, on racial grounds, he treats that person less favourably than he treats or would treat others. This is generally known as direct discrimination on grounds of race.

40. For the purposes of the RRO, “racial grounds” means grounds of colour, race, nationality or ethnic or national origins.

Conclusions

The unfair dismissal claim

41. The tribunal began by considering the claim of unfair dismissal and whether this was lodged outside the statutory time limit. In doing so, it was necessary for the tribunal to determine the effective date of termination of the claimant’s contract of employment. In this case, it was clear that the claimant did not work any period of notice and therefore, in accordance with article 129 of the Order, the effective date of termination was the date on which the termination actually took effect. The claimant’s last day of work was Saturday 13 September 2008 and both parties were in agreement that the effective date of termination was the next day Sunday 14 September. It was also clear that the claimant’s name did not appear on the staff rota for the Central Bar after 13 September.

42. Accordingly, the tribunal had little difficulty in concluding that the effective date of termination in this case was 14 September 2008.

43. In accordance with article 145 of the Order, the normal time limit for submission of the claim form in this case therefore expired on 14December 2008.

44. The tribunal then considered whether this was a case where the time limit for submission of the claim is extended in accordance with Reg 15 of the Dispute Resolution Regs. The time limit is so extended if, at 14 December 2008, there were reasonable grounds for the claimant to believe that a dismissal procedure was ongoing. In this case, no dismissal procedure of any description was ever followed. The tribunal therefore concluded that there were not and could not have been reasonable grounds for the claimant to believe that a dismissal procedure was ongoing at 14 December 2008. Accordingly, the normal time limit could not be extended to six months in this case. Subject to the tribunal’s discretion to extend the time limit in accordance with article 145 (2) (b) of the Order, the time limit for submission of this claim expired on 14 December 2008.

45. The tribunal then proceeded to consider whether the time limit in respect of the claimant’s claim of unfair dismissal should be extended on the grounds that it was not reasonably practicable to lodge the claim within the statutory time limit. In this case, the claimant stated that it was not possible to lodge the claim on time due to difficulties in getting a translator to assist him with completing the form. The claimant put this forward as an impediment which had prevented his lodging the claim on time. However, despite being given a number of opportunities by the tribunal to provide an explanation for the delay in submission of the claim form, the claimant provided virtually no detail of the difficulties he referred to in finding a translator. In the opinion of the tribunal, the claimant’s evidence on this point remained extremely vague and unsatisfactory. The claimant admitted under cross-examination that he had received a copy of the claim form whilst he was receiving assistance in completing the letter which was sent to the respondent on 1 December 2008. It was therefore clear that the claimant had the claim form two weeks or more before the expiry of the normal time limit. The claimant provided no detail in relation to his difficulties in finding a translator to assist in completing the claim form, although he had clearly been able to obtain the assistance of a translator in sending correspondence to the respondent on at least two occasions. The claimant also failed to provide any details as to any efforts he made at this time to obtain such assistance.

46. It is clear that the burden is on the claimant to show precisely why the claim was not presented on time. In this case, the tribunal concluded that the claimant had failed to discharge this burden. Accordingly, the tribunal’s conclusion was that the claimant had failed to show that it was not reasonably practicable for him to lodge the claim on time.

47. If the tribunal had been prepared to extend time in this case, the tribunal would still have concluded that the claim was out of time since the tribunal was of the view that it was not lodged within a reasonable period after the end of the normal time limit. The claim was lodged more than three months late and the tribunal considered this was well outside the additional time period which would have been reasonable in the circumstances of this case.

48. On the basis of the evidence given by the claimant, the tribunal reached the firm conclusion that the claim of unfair dismissal was lodged out of time and the tribunal did not therefore have jurisdiction to determine this claim.

49. In view of its conclusion in relation to the time limit point, it was not necessary for the tribunal to reach a formal conclusion on the merits of the claimant’s claim of unfair dismissal. However, the tribunal would indicate that it was inclined to the view that the claimant had not satisfied the tribunal that either the words or actions of Mr Curran amounted to a dismissal. Rather, the tribunal’s view was that the situation was very confused and Mr Curran was left with the understanding that the claimant had resigned. This understanding may have been contrary to the claimant’s intentions, but that does not mean that the claimant was dismissed by the respondent. Had it been required to do so, the tribunal would therefore have found that the claimant was not dismissed by the respondent and his claim of unfair dismissal would have failed.

The claim of race discrimination

50. The tribunal first had to consider whether this claim was lodged outside the statutory time limit and, if so, whether the tribunal should exercise its discretion to extend the time for submission of the claim. It was clear that the claim of race discrimination was about the claimant’s alleged dismissal by the respondent. Therefore the alleged act of discrimination took place either on

12 September 2008 when the incident took place between the claimant and Mr Curran or on 14 September which, as the tribunal has found, was the effective date of termination of the claimant’s contract.

51. Since this is a case where the statutory grievance procedure is applicable, the time limit is extended to 6 months from the date on which the act of discrimination occurred. In this case, the time limit therefore expired on

14 March 2009.

52. The tribunal then proceeded to consider whether it should exercise its discretion to extend the time limit for submission of the race discrimination claim on the grounds that it is just and equitable to do so. In doing so, the tribunal considered the claimant’s evidence as to the circumstances relating to the reasons why the claim was lodged late. As noted at para 44 above, despite being provided with a number of opportunities to expand and clarify his evidence on this point, the claimant’s evidence remained very vague and unsatisfactory.

53. The tribunal addressed the issue of the prejudice which each party would suffer as a result of the decision reached. If the tribunal decided not to exercise its discretion, the claimant would lose the opportunity to have his claim of race discrimination determined. On the other hand, if the tribunal did exercise its discretion, the respondent would have the risk of a finding against it. The tribunal also considered all the other circumstances of the case, including:

(a) the length of, and reasons for, the delay. In this regard, the tribunal noted that the claim was only six days late. On the other hand, the claimant’s evidence in relation to the reasons for the delay was very vague and unsatisfactory and the claimant failed to address a number of relevant issues as outlined at para 44 above.

(b) the extent to which the cogency of the evidence is likely to be affected by the delay. In this case, it was clear that a delay of six days was unlikely to affect the cogency of the available evidence.

(c) the steps taken by the [claimant] to obtain appropriate advice once he knew of the possibility of taking action. In this case, the claimant in his evidence provided very little detail as to the steps he had taken to either obtain advice as to his rights or assistance with translating the claim form.

54. The tribunal recognised that the discretion to extend time for submission of a discrimination claim is much wider than that which applies to a claim of unfair dismissal. However, the tribunal felt that the claimant had failed to provide any cogent evidence as to the reasons for the delay and, on balance; the tribunal was not persuaded that there was any basis on which it should exercise its discretion to extend time in this case.

55. Accordingly, the tribunal concluded that the claimant’s claim of race discrimination was lodged out of time and, since the tribunal was not persuaded to exercise its discretion to extend time, the tribunal had no jurisdiction to determine the race discrimination claim.

56. In view of the tribunal’s conclusion in relation to the time limit issue, it was not necessary for the tribunal to formally determine the race discrimination claim. The claim of race discrimination was focused on the claimant’s alleged dismissal. However, the tribunal would indicate that, since the tribunal was inclined to the view that the claimant was not dismissed, if required to determine the point, the tribunal would have concluded that the claimant did not suffer any less favourable treatment on grounds of race. The race discrimination claim would therefore have failed on this basis.

57. Whilst this point does not directly affect its decision, the tribunal would indicate that it was sympathetic to the claimant’s argument that the respondent should have arranged an interpreter for the grievance meeting with the claimant and to translate the respondent’s written response into Polish. The tribunal considered that the respondent, being aware that the claimant spoke little English, would have been well-advised to take these steps.

Chairman:

Date and place of hearing: 14 and 15 December 2009, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Michalak v J D Wetherspoon PLC [2010] NIIT 04345_09IT (23 February 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/04345_09IT.html Cite as: [2010] NIIT 04345_09IT, [2010] NIIT 4345_9IT

Industrial Tribunals Northern Ireland Decisions