Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2949/17

 

 

CLAIMANT: Amanda Gourley

 

 

RESPONDENT: Rutledge Recruitment & Training Ltd

 

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claims have been lodged outside the statutory time-limit of three months and that that time-limit should not be extended in the circumstances of the case. The claims are therefore dismissed for want of jurisdiction.

 

Constitution of Tribunal:

Vice President (sitting alone): Mr N Kelly

 

Appearances:

The claimant was represented by Mr O Friel, Barrister-at-Law, instructed by Paul Doran Law, Solicitors.

The respondent was represented by Ms C Reid, of the respondent company.

 

Background

 

1. The claimant had been employed by the respondent for approximately eight complete years. She was summarily dismissed on 9 February 2017.

 

2. The claimant alleges that she had been unfairly dismissed and that there had been unauthorised deductions from wages, both contrary to the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order').

 

3. The tribunal claim was lodged by the claimant on 26 May 2017, some 16 days after the expiry of the statutory time-limit for both the claim of unfair dismissal and the claim of unauthorised deductions from wages.

 

4. This pre-hearing review was held to determine:-

 

"(i) whether the claim of unfair dismissal and unauthorised deductions from wages were outside the statutory time-limit and, if so;

 

(ii) whether time should be extended on the 'reasonably practicable' test and, if so;

 

(iii) whether the claims should be struck-out for failure to comply with the directions of the tribunal and for failure to prosecute the claims?"

 

Procedure

 

5. The claimant gave evidence-in-chief, both in the form of a sworn witness statement and orally.

 

6. The claimant accepted that the effective date of her dismissal had been 9 February 2017. She therefore accepted that the claims of unfair dismissal and of unauthorised deductions from wages had been lodged outside the statutory time-limit of three months.

 

7. The claimant referred, in her witness statement, to attempts by her to contact her trade union (Unison) on three occasions; 27 March 2017, 5 April 2017 and 8 April 2017. In oral evidence, the claimant clarified that these had been three e-mails which she had sent to her trade union. On request, these e-mails were produced by the claimant from her Smartphone. When that Smartphone was checked by her counsel, the claimant's counsel properly disclosed that there also had been an e-mail of 14 April 2017 from Mr Ferguson of her trade union which had been in reply to the claimant's e-mails and, in particular, to her e-mail of 8 April 2017.

 

Relevant law

 

Unauthorised deduction from wages

 

8. Under Part IV of the 1996 Order, and, in particular, Article 55, a claim of unauthorised deductions from wages must be presented to the tribunal within three months of the date of the last alleged deduction.

 

Paragraph (4) provides:-

 

" Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable."

 

9. Under Part XI of the 1996 Order and, in particular, Article 145, a complaint of unfair dismissal must be presented to the tribunal within 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 complaint to be presented before the end of that period of three months."

 

10. Therefore, for both the claim of unfair dismissal and the claim of unauthorised deductions from wages, an application for an extension of time of the statutory time-limit of three months contains two elements. Firstly, the employee must show that it had not been reasonably practicable for him to have presented his claim in time. Secondly, if the employee is successful in establishing that fact, the tribunal must be further satisfied that the time within which the claim had in fact been presented had been reasonable.

 

11. The burden of proving, firstly, that it had not been reasonably practicable for the claimant to have presented his claim within time rests firmly upon the claimant. The Court of Appeal (Great Britain) in Porter v Bandridge [1978] IRLR 221 stated:-

 

"The onus of proving that it was not reasonably practicable to present the complaint within a period of three months was upon the applicant. That imposes a duty upon the applicant to show precisely why it was that he did not present his complaint. He has to satisfy the Tribunal that he did not know of his rights during the whole of the period [of 11 months] and that there was no reason why he should make enquiries or should know of his rights during that period."

 

12. The Court of Appeal (Great Britain) stated in Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 that the correct approach to the ' reasonably practicable' test was to ask ' was it reasonably feasible to present the complaint to the Employment Tribunal within the relevant three months?'.

 

Relevant findings of fact

 

13. The claimant gave detailed evidence in her witness statement of various medical conditions and she also produced a letter dated 18 October 2017 from her General Practitioner.

 

14. On the basis of her own evidence and on the basis of the letter from her General Practitioner, it is clear that during the relevant period from 9 February 2017 to 26 May 2017, the claimant had suffered from a range of medical conditions. These included depression, anxiety, insomnia, fibromyalgia, IBS, carpel tunnel syndrome, abdominal pains, and restless leg syndrome.

 

15. The claimant argued that her medical conditions had prevented her from lodging her claim within the three month statutory time-limit or until 26 May 2017. She stated in oral evidence that her ' head was all over the place'; ' I was beside myself' and ' it was all a blur'.

 

16. Having considered the claimant's oral and written evidence, I am unable to accept the argument put forward on behalf of the claimant.

 

17. The claimant referred, in her witness statement, to three attempts made by her to contact her trade union for advice and assistance in relation to her dispute with her employer and in relation to her proposed dismissal. In oral evidence, she clarified to the tribunal that these had been three separate e-mails dated 27 March 2017, 5 April 2017 and 8 April 2017. Those e-mails had not been produced to the respondent or the tribunal and had not been shown, in particular, to her counsel. The claimant was asked to produce those e-mails from her Smartphone and she was given time to enable her to do so before the hearing resumed.

 

18. Those three e-mails, once produced, were clearly considered and articulate requests from the claimant for advice and assistance to be furnished by her trade union. Those e-mails disclosed no confusion and disclosed no difficulty on the part of the claimant in understanding her legal position. The e-mails were persistent. They followed in relatively quick succession to each other. They were entirely inconsistent with her oral evidence to this tribunal that her ' head was all over the place'

 

19. The claimant, in oral evidence, first stated that she had thought that the trade union had been ' going ahead with my case (to the tribunal)'. That statement in oral evidence is entirely inconsistent with the content of the e-mails later produced. Those e-mails demonstrate that the claimant had been seeking assistance from her trade union but disclosed nothing on which it could be concluded that the claimant had thought that the trade union had been actively pursuing her claim on her behalf; quite the contrary.

 

20. The claimant's Smartphone also disclosed a replying e-mail from a Brian Ferguson in the trade union which was dated 14 April 2017. That e-mail had been clear and detailed. The trade union stated that it had decided not to support the claimant's case any further. The e-mail was again entirely inconsistent with the claimant's statement in oral evidence that she had thought that the trade union were ' going ahead with my case'.

 

21. The claimant had also stated in oral evidence that she had been unaware of the statutory time-limits for tribunal litigation. However, the e-mail dated 14 April 2017, from Mr Ferguson, clearly, and at some particular length, set out those statutory time-limits and specifically warned the claimant that any claim to the industrial tribunal must be lodged with those time-limits. The e-mail is again entirely inconsistent with the claimant's oral evidence and does not support any proposition that the claimant had been either unaware of her rights to proceed to an industrial tribunal, that she had been unaware of the time-limits for so doing, or that she had in some way thought that the trade union had been acting on her behalf.

 

22. The claimant, in further oral evidence, asked whether the fact that she had continued to pay dues to her trade union had not automatically meant that the trade union would have been acting for her and representing her in this matter. That question, posed by the claimant, makes no sense. The terms of the e-mail dated 14 April 2017 were clear and unambiguous. The trade union were refusing to act further on the claimant's behalf and had specifically warned her that if she wished to pursue a claim to the industrial tribunal on her own behalf she was subject to a strict time-limit of three months.

 

23. The claimant gave oral evidence that she rarely checked e-mails and that she did not know of the reply from the trade union dated 14 April 2017. Having considered the claimant's evidence it is difficult to believe this proposition. The claimant had sent three e-mails in relatively quick succession to the trade union seeking a reply and, in particular, seeking advice and assistance in relation to her employment dispute. It is simply not credible that the claimant, having gone to that trouble and having been persistent to that extent, did not then check her e-mails for a reply from the trade union.

 

24. The claimant also disclosed in oral evidence that apart from the e-mails to the trade union and the e-mail dated 14 April 2017 from the trade union, she had received a telephone call from a trade union official to deal with her ' complaint' that the trade union had not been acting properly on her behalf. Firstly, that again is inconsistent with her proposition that she had felt that the trade union had been acting on her behalf. She had clearly complained exactly to the contrary. Furthermore, it is entirely inconsistent with the proposition that she had in some way been medically incapable of pursuing the claim by lodging a claim to the tribunal within the statutory time-limit . She had clearly been capable of pursuing not just repeated requests to the trade union for assistance but of pursuing a complaint in that respect.

 

Decision

 

25. The claims are accepted by the claimant as being, and are clearly, in any event, outside the statutory time-limit of three months imposed by the 1996 Order.

 

26. The fact that the claimant, during the relevant period, had suffered various medical conditions is not determinative of the issue before the tribunal. It is not the case that any or all of these medical conditions automatically meant that the claimant was not subject to the statutory three month time-limit for bringing a claim. The time-limit is there for a purpose; to ensure finality and fairness in employment litigation. The time-limits in the present case can only be extended where the tribunal is satisfied, firstly, that it had not been reasonably practicable (feasible) for the claimant to have lodged her claims within the statutory time-limit of three months; and, secondly, where the time in which the claims had eventually been lodged had been reasonable.

 

27. The claimant's evidence that she had been medically incapable, or medically significantly impeded, from presenting her claim within three months was effectively contradicted by her clear and articulate e-mails of 27 March 2017, 5 April 2017 and 8 April 2017. In those e-mails she persistently and specifically sought the advice and support of her trade union. The claimant had also been able to deal with a telephone conversation with a trade union official to deal with her ' complaint' about her response from the union.

 

28. I can only conclude that, while the claimant had suffered various medical conditions during the relevant period, she had been perfectly, and demonstrably, capable of lodging her tribunal claim within the statutory time-limit of three months.

 

29. It is also clear that the claimant had been specifically and in some detail warned, in writing on 14 April 2017, by her trade union of the statutory time-limit. It is equally clear that the claimant would have read and would have understood that e-mail.

 

30. As indicated above, the onus is on the claimant to persuade the tribunal that it had not been reasonably feasible for her to have presented her claims within the statutory time-limit. She has completely failed to do so.

 

31. The time-limit is not extended.

 

32. The claims are therefore dismissed for want of jurisdiction.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 31 October 2017, Belfast

 

 

Date decision recorded in register and issued to parties: