Gorman v MMD Communications Ltd [2012] NIIT 01128

THE INDUSTRIAL TRIBUNALS

CASE REF: 1128/11

CLAIMANT: Hugh Gorman

RESPONDENT: MMD Communications Ltd

DECISION

The unanimous decision of the tribunal is that it does not have jurisdiction to determine the claimant’s claim of breach of contract as his originating application was not presented within the time limit specified by Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.

Constitution of Tribunal:

Chairman: Ms J Knight

Members: Mrs C Lewis

Mr R Schofield

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Tughans Solicitors.

ISSUES

1. The tribunal had to determine the following issues:-

1. whether the claimant had presented his originating claim within a period of three months beginning with the effective date of termination of his contract of employment and if not;

2. whether it was not reasonably practicable for the complaint to be presented within that period and if so whether the complaint was presented within such further period as the tribunal considers reasonable;

3. if the originating claim was presented within time whether the claimant was employed on a twelve month contract and was contractually entitled to payment in respect of 437 hours overtime and wages .

2. The tribunal determined at the outset, with the agreement of the parties, 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. The claimant also complained that there had been a breach of Regulation 4 of the Working Time Regulations on the basis of his contention that he regularly worked in excess of 48 hours per week. However, the tribunal does not have powers to determine this issue as Regulation 4 of the Working Time Regulations does not confer a free-standing right on the claimant.

EVIDENCE

3. The tribunal heard the evidence of the claimant, Mr Hugh Gorman and witnesses for the respondent, Mr Maurice Devlin and Mr Jonathan Christie. The tribunal also considered documents contained in an agreed bundle to which it was referred during the course of the hearing.

FINDINGS OF FACT

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

1. The claimant, Mr Hugh Gorman, was employed by the respondent company as Area Sales Manager from 19 July 2010 until 31 January 2011. The respondent company is owned by Mr Maurice Devlin and his wife, Mrs Devlin, who are both Directors of the company. In early July 2010, on the recommendation of Mr Jonathan Christie, Mr Devlin met with the claimant, who at that time was employed by a bank, to discuss the possibility of his appointment as Area Sales Manager, for the respondent company. There was no record of this meeting but it was agreed that the claimant would take up the post on 19 July 2010. The claimant’s contention was that he was assured by at this meeting by Mr Devlin that he would be employed for a minimum period of 12 months and that had he not received this assurance he would not have left the security of his job with the bank. This was denied by Mr Devlin who contended that the claimant had told him that he would leave the company if it turned out that he was not the “right man for the job”. It appears that there was some discussion about wages and possible bonus for the claimant but his working hours were not discussed at this meeting.

2. The claimant commenced his employment on 19 July 2010, but he did not receive a statement of his main terms and conditions of employment from the respondent until 15 November 2010. The written terms provided:-

“You are employed on a probationary period of 12 months during which time your performance will be assessed. Your employment may be terminated by either party at any time during this period by giving the notice detailed in the notice section”.

The contract further stated:-

“Your normal hours of work are 40 per week in accordance with the role which will be notified to you on a weekly basis and will involve day, night and weekend working. You will have unpaid breaks as directed by your manager.

In addition to these hours you will be required to work a reasonable amount of additional hours when necessary. You are entitled to payment for additional hours at your normal rate of pay.”

3. The claimant told the tribunal that he did not read his contract of employment at this time and that he was unaware of his right to claim overtime payments for time worked in excess of 40 hours. In his role as Area Sales Manager, the claimant was responsible for authorising claims of overtime for other employees in the respondent company. The claimant’s case was that from the beginning of his employment he regularly worked well in excess of his weekly contractual hours and that he kept a record of this which was corroborated by his mobile telephone records and his company car tracker records.

4. On 3 January 2011, Mr Devlin informed the claimant that his position would be made “redundant”. Mr Devlin acknowledged that the claimant was “gutted” at this news. A consultation meeting took place on 5 January 2011, which was conducted by Mr Jonathan Christie. Mr Christie then wrote to the claimant on 6 January 2011 confirming that he had been selected for redundancy and that his employment would terminate on 31 January 2011. The claimant was not required to work his notice period and he was paid the sum of £5,000.00 up until the end of January 2011, which included his salary and one week’s notice pay and holiday pay entitlement. The claimant gave notice of his intention to appeal against this decision by letter to Mr Devlin dated 12 January 2011. He enquired why he had not been offered another position in the group. He also raised the issue of non-payment of overtime hours where during the course of his employment totalling 437 hours and that his employment for a period of 12 months was not honoured. The appeal meeting took place on 15 February 2011. By letter dated 18 February 2011 the respondent company notified the claimant that the decision to dismiss him for redundancy had been confirmed. Further, the respondent contended that the claimant was not entitled to payment for overtime hours as it was never aware of, approved or authorised overtime during the course of his employment. It was denied that he was issued with a fixed-term contract but was issued with a permanent contract which included a probationary period of 12 months terminable by either party giving the requisite notice.

5. The claimant told the tribunal that he was in a “pretty dark place” for three or four months afterwards and that he was focused on finding alternative employment. Between 5 February 2011 and March 2011 the claimant made numerous job applications for positions throughout the United Kingdom. He was eventually appointed as Deputy Manager of a bank and commenced employment on 20 April 2011. The claimant told the tribunal that he was not in the right frame of mind to lodge proceedings with the Industrial Tribunal, although he did not produce any medical evidence. He also stated that he relied on information on the Office of the Industrial Tribunals website which stated that parties should try to resolve the matters informally before lodging proceedings with the tribunal and from this understood that he had three months from the date of his appeal to lodge proceedings with the Industrial Tribunal. It was his parents’ suggestion that he should “do something about it” that spurred him into lodging his complaint with the Industrial Tribunal on 9 May 2011. His complaint was one of a breach of contract and that he was entitled to:-

1. Compensation for breach of contract in respect of the remaining period left to run on the 12 month contract.

2. 437 hours overtime payment which he told the tribunal he could prove having worked by reference to telephone, mobile phone records and car tracker records.

The respondent denied that the claimant had been employed on a fixed-term 12 month contract and secondly that the claimant had failed during the course of his employment the claimant had not been required by the respondent to work overtime, that he had not made his employer aware he had worked the overtime now claimed and further disputed that the claimant had indeed worked the overtime hours as claimed by him. At the Hearing, counsel for the respondent raised the time limitation issue.

THE LAW

5. Article 3 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 provides that proceedings may be brought before an Industrial Tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if the claim arises or is outstanding on the termination of the employee’s employment.

Article 7 of the 1994 Order provides an Industrial Tribunal “shall not entertain a complaint in respect of an employees contract claim unless it is presented:-

a. within the period of three months beginning with the effective date of termination of the contract giving rise to the claim; or..........

c. where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.”

The statutory dispute resolution procedures did not apply to claims made under the 1994 Order.

CONCLUSIONS

6. The claimant’s employment terminated on 31 January 2011 and he did not present his originating claim to the Office of the Industrial Tribunals and the Fair Employment Tribunal until 9 May 2011, clearly outside the three month time limit specified in Article 7(a) of the 1994 Order.

7. The tribunal considered whether there were grounds to exercise its discretion to extend the time for presenting the claim. The onus is on the claimant firstly to show that it was not reasonably practicable to present his claim in time. The burden of proving this rests firmly on the claimant (Porter v Bandridge Ltd (1978) IRLR 271). If he succeeds in so doing, 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) IRLR 119.)

8. The reason given by the claimant for the late presentation of his claim was that he was not in the right frame of mind to lodge a complaint with the tribunal and further that he had a mistaken belief that the time started to run from the date of the outcome of his appeal against dismissal. The tribunal took into account that the claimant adduced no medical or other evidence to support his contention that he was unfit to lodge the complaint with the Industrial Tribunal within the specified time limit. The tribunal also took into consideration that the claimant was fit and able to apply during that period for numerous job applications. The claimant appears to have been under a misapprehension about the time limit but the tribunal considers that he did not take reasonable steps to find out about the relevant time limit which applied in his own case.

9. Therefore the tribunal concludes that the claimant did not discharge the burden of showing that it was not reasonably feasible for him to lodge his complaint within the statutory time limit and it does not exercise its discretion to extend the time for presenting the claim. This being the case the tribunal does not have jurisdiction to consider whether the claimant is contractually entitled to overtime pay or whether the claimant was employed on a 12 month fixed term contract and is therefore entitled to compensation for the early termination of said contract.

10. The claimant’s claim is therefore dismissed because it was presented outside the relevant statutory time limits.

Chairman:

Date and place of hearing: 8 and 17 November 2011, 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 >> Gorman v MMD Communications Ltd [2012] NIIT 01128_11IT (12 January 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/01128_11IT.html Cite as: [2012] NIIT 01128_11IT, [2012] NIIT 1128_11IT

Industrial Tribunals Northern Ireland Decisions