Potter v Ballymena Borough Council [2012] NIIT 00948

THE INDUSTRIAL TRIBUNALS

CASE REF: 948/12

APPELLANT: Richard Potter

RESPONDENT: Ballymena Borough Council

DECISION

The unanimous decision of the tribunal is:-

(1) The appellant’s notice of appeal against the prohibition notice issued by the respondent on 25 August 2010, was out of time and the tribunal refused to extend the time to appeal, as it was not satisfied it was not reasonably practicable for the appeal to be brought in time.

(2) The tribunal therefore does not have jurisdiction to determine the said appeal and the appeal is therefore dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr A Kerr

Mr R Hanna

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr M Chambers, Barrister-at-Law, instructed by Samuel Cumming and Son, Solicitors.

REASONS

1. On 25 August 2010, the respondent served by hand on the appellant, Richard Potter, t/a Jungle World on 25 August 2010, a Prohibition Notice pursuant to the Health and Safety at Work (Northern Ireland) Order 1978 (as amended by the Health and Safety at Work (amendment) (Northern Ireland) Order 1988), arising out of certain activity, at the appellant’s premises, which the respondent considered, involved a risk of serious personal injury because of failure to control and prevent risk of injury and/or infection to members of the public from animals held on the premises. In light of the tribunal’s decision, as set out above, it was not necessary for the tribunal to consider the details, set out in the said notice, relating to the said matters and/or in the schedule, which set out the matters to be carried out by the appellant in order to comply with the said prohibition notice. Also served, by hand, with the said prohibition notice was a letter dated 25 August 2010. Enclosed with the prohibition notice was a copy of the Industrial Tribunals Procedural Guide.

2. In the said letter dated 25 August 2010, it was stated by Mrs E Logan, Senior Environmental Health Officer of the respondent, inter-alia, “I would remind you of your right of appeal, which is 21 days from the date of service of the prohibition notice …”. The appellant, who gave oral evidence to the tribunal, accepted that he had received the said letter and prohibition notice but could not recall whether the said prohibition notice had attached to it the printed notes, which included details in relation to the time limit for appeal. These notes stated:-

“Time Limit for Appeal

A notice of appeal must be sent to the Secretary of the Tribunals within 21 days from the date of service on the appellant of the Notice or Notices appealed against. However, if it is not reasonably practicable for an appeal to be brought within this time, then an application can be made in writing to the Secretary and the Tribunal may extend this period”.

Having heard evidence by Mrs Elise Logan, who had served the said documents by hand, the tribunal was satisfied not only by her evidence, but also after examining the said prohibition notice, that the notes, attached to the prohibition notice, were served on the appellant at the date and time of service of the notice.

3. At the outset of the hearing, the appellant did not dispute that his appeal was out of time. He also did not dispute that he had not made any application in writing to the Secretary for an extension of time pursuant to the provisions of Rule 3 (2) of the Industrial Tribunals (Health and Safety – Appeals against Improvement and Prohibition Notices) Rules of Procedure, contained in Schedule 5 of the Industrial Tribunals (Constitution of Rules of Procedure) Regulations (Northern Ireland) 2005 (the Rules of Procedure). At the outset of this hearing, the claimant, despite his failure to make such an application in writing, made it clear he wished to make such an application to the tribunal for an extension of time on the grounds that it was not reasonably practicable for an appeal to be brought within the said time limit of 21 days from the date of service of the notice appealed against. Fairly and properly, counsel for the respondent agreed to the tribunal considering the appellant’s application for an extension of time, despite the fact that he had failed to make the said application in writing any date prior to the hearing. In the circumstances, given the respondent’s consent, the tribunal considered it was in accordance with the terms of the overriding objective, having regard to the fact that the claimant was not legally represented at this hearing, to hear his application for an extension of time, despite the said failure to make the application in writing prior to the hearing. The Tribunal also decided, with the consent of the parties to determine this time issue; and the only proceed to determine the substantive issues of the appeal, if time was extended by the tribunal.

4. As set out previously, the Rule 3 (2) of the said rules of procedure provides as follows:-

“A tribunal may extend the time mentioned above where it is satisfied, on an application made in writing to the Secretary either before or after the expiration of that time, that it is or was not reasonably practicable for an appeal to be brought within that time”.

The tribunal noted that the formulation is similar to the discretion to extend time in cases of unfair dismissal, pursuant to Article 145 (2) of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-

“… an Industrial Tribunal shall not consider a complaint under this Article 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 the case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”.

The statutory test therefore under Article 145 (2) the 1996 Order involves two distinct questions:-

(a) was it reasonably practicable to present the complaint in time; or

(b) if it was not, did the applicant bring the complaint within a further reasonable period?

In essence, Rule 3 (2) of the Rules of Procedure relating to this appeal against this prohibition notice, involves only the first of the two questions, which are applicable in relation to the test to be applied in unfair dismissal cases. Despite this, however, the tribunal was satisfied that the case law, which has built up over many years, in relation to the proper interpretation of the test of “reasonably practicable” in cases of unfair dismissal, would also apply in determining whether it was reasonably practicable for the appeal against the prohibition notice to be brought within time, pursuant to the provisions of Rule 3 (2) of the said rules of procedure.

5. Despite the fact that the appellant had received the said letter from the respondent, referring to the said time limit for the appeal and also the notes attached to the prohibition notice, which set out not only the time limit for the appeal but also set out the procedure to make an application to the tribunal to extend time, the appellant took no action to bring an appeal until he presented an appeal to the tribunal on 8 June 2012. It would appear, from his evidence, that he concentrated on the terms of the prohibition notice itself but he did not bother to read the notes relating to the appeal attached to the Notice. Initially, in his evidence, he sought to suggest to the tribunal that he had taken no steps to obtain legal advice and/or assistance in relation to this matter. However, in the course of cross examination, it became apparent that, by letter dated 27 August 2010, from a solicitor, acting on his behalf, that he had not only sought advice from this solicitor, but also that his solicitor had been informed by him of the said notice. Indeed, the appellant accepted he had instructed not only the same firm of solicitors but also counsel in relation to proceedings which have been brought arising out of the incident, which gave rise to the prohibition notice, but also other proceedings for breach of the said prohibition notice. Indeed, given the involvement of the appellant’s solicitor from immediately after the service of the prohibition notice, the tribunal found it hard to understand why no consideration was given to the bringing of an appeal by the appellant, until 8 June 2012, which was some 20 months (approximately) after service of the said notice. The tribunal noted also that no application, during the said period was brought by the appellant for a direction suspending the operation of the prohibition notice, pursuant to the rules of procedure.

6. As was held in the well known case of Palmer and Saunders – v – South End on Sea Borough Council (1984) IRLR 119 it has long been held that the term “was it reasonably practicable” should be interpreted to mean “was it reasonably feasible”.

Given the terms of the letter dated 25 August 2010 and the notes attached to the prohibition notice, the appellant’s access to legal advice throughout the relevant period, the tribunal could find no evidence that it was not reasonably feasible for the appeal to have been brought within the relevant 21 days from the date of service on the appellant of the prohibition notice on 25 August 2010.

The tribunal, since it was not satisfied that it was not reasonably practicable for the appeal to have been brought in time, had no jurisdiction to determine the appellant’s appeal and it is therefore dismissed.

7. The tribunal noted, when it refused to adjourn this appeal on the application of the parties at the outset of the hearing, that there have been ongoing discussions between the parties to resolve outstanding differences between them in relation to the terms of prohibition notices and the requirements imposed on the appellant in order to comply with the said notice. The tribunal refused the said adjournment, on the grounds that to permit such an adjournment would have been contrary to the terms of the overriding objective in circumstances where the prohibition notice had been served on 25 August 2010 and the application for the adjournment did not provide the necessary certainty for resolution of this matter, by the end of the period of the requested adjournment. The Tribunal, without prejudice to the refusal by the tribunal to grant the adjournment and/or to extend time to appeal, would urge the parties, in so far as possible, to continue, as a matter of urgency, their efforts to resolve their outstanding differences.

Chairman:

Date and place of hearing: 2 July 2012, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Potter v Ballymena Borough Council [2012] NIIT 00948_12IT (10 July 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/948_12IT.html Cite as: [2012] NIIT 00948_12IT, [2012] NIIT 948_12IT

Industrial Tribunals Northern Ireland Decisions