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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Ferguson v North & West Belfast Health & Social Services Trust [2007] NIIT 1345_05 (18 January 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/1345_05.html Cite as: [2007] NIIT 1345_05, [2007] NIIT 1345_5 |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1345/05
CLAIMANT: Frances Ferguson
RESPONDENT: North & West Belfast Health & Social Services Trust
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claim is outside the statutory time limit but is answered in the negative. The tribunal extends the time for making a claim for less favourable treatment to 26 September 2005.
Constitution of tribunal:
Chairman (sitting alone): Mr Brian Greene
Appearances:
The claimant did not attend, nor was he represented.
The respondent was represented by Ms S Owens, Solicitor, of MSC Daly, Solicitors.
Sources of evidence
1. The tribunal did not hear any oral evidence. It had regard to the claimant's claim to an industrial tribunal, the respondent's response, correspondence from the Office of Industrial Tribunals and the Fair Employment Tribunal (OITFET) to the claimant of 3 October 2005 and to the claimant's representative of 29 November 2005 and a letter from the claimant to OITFET of 5 October 2005.
The claim and defence
2. The claimant claimed unfair dismissal and less favourable treatment as a fixed-term employee. The respondent denied the claimant's claims. It further asserted that it reserved its position on the out-of-time issue.
The tribunal was satisfied that the claimant had been informed of the instant hearing by letter of 14 September 2006 and decided to proceed with the matter in her absence.
The issues
This matter was listed for a pre-hearing review to deal with the following issues:-
(a) Was the claim presented within the specified time limit?
If not, is it just and equitable, in all the circumstances of the case, for an industrial tribunal to consider this claim despite the fact that it is out of time?
The issue for determination can only apply to the claimant's claim for less favourable treatment as a fixed term employee and the hearing proceeded on that basis.
Findings of fact
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4. |
(a) |
The respondent employed the claimant from 27 June 2001 to 24 or 25 June 2005 as a nursing assistant. |
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(b) |
The claimant brought the instant claim for unfair dismissal and unfavourable treatment as a fixed term employee. It was lodged with OITFET on 26 September 2005. |
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(c) |
In her originating claim the claimant states that the matter of which she is complaining happened on 24 June 2005. |
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(d) |
In her letter of 5 October 2005 the claimant wrote to OITFET to explain why her originating claim was late as follows:- |
“…..
I did travel to Belfast on Friday 23 September 2005 to hand deliver but due to blockades and police check-points we were unable to get to the premises on time.
On Saturday morning I took the claim to the Post Office and paid for special delivery to ensure delivery on Monday morning.
I understand this is now after the due date but due to unforeseen circumstances on the Friday 23rd this did not go to plan and am asking you to take this into consideration.
…”.
The law
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5. |
(a) |
A tribunal cannot consider a complaint of unfavourable treatment against a fixed-term employee unless it is brought within three months of the date of the less favourable treatment or where the less favourable treatment arises from a series of acts or failures on the date of the last act or failure (Regulation 7(2)(a) of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002). |
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(b) |
Where a complaint is late the tribunal may consider the complaint, in all the circumstances of the case if it is just and equitable to do so [Regulation 7(3) Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002]. |
Application of the law and findings of fact to the issues
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6. |
(a) |
In her claim 24 June 2005 is stated as the date when the matter about which the claimant is complaining happened. Her claim should have been brought by 23 September 2005. |
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(b) |
The claimant's claim is dated 26 September 2005, three days outside the requisite three months for bringing a claim. |
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(c) |
The claimant's claim was not brought within the specified time limit and therefore the first preliminary issue is answered in the negative. |
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(d) |
The onus is on the claimant to convince the tribunal that it is just and equitable to exercise its discretion. |
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(e) |
The claimant has discharged that onus. The tribunal is satisfied, in all the circumstances, that it is just and equitable to extend time to enable the claimant to continue with this head of claim. Among the factors taken into account by the tribunal were:- |
The claimant, in her letter to OITFET, explained the reason for the three day delay. As the last day for delivery was a Friday the claimant could not ensure delivery until the following Monday which she did.
The three day delay is unlikely to have affected the cogency of the evidence.
The respondent sought some information from the claimant about the reasons for the delay but the claimant did not respond.
There is not any evidence to show her promptness or lack thereof in processing her claim. The matter of which the claimant complains occurred on 24 June 2005 and the originating claim is dated 23 September 2005.
Nor is there any evidence setting out the steps taken by the claimant to obtain professional advice. Although in her originating claim she mentions Gerard McAleer at Muckamore Abbey Hospital as her representative.
The prejudice to the claimant if the tribunal refuses to exercise its discretion is that one of the limbs of her case falls. She would be left with a claim for unfair dismissal which would itself be subject to scrutiny regarding time limits but under a stricter test.
(vii) The prejudice to the respondent is to lose the benefit of the defence of the time limits.
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(f) |
The second preliminary issue is answered in the affirmative. |
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(g) |
The tribunal accordingly extends the time for making this application to 26 September 2005. |
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(h) |
This application can now proceed to hearing. |
Chairman:
Date and place of hearing: 15 November 2006, Belfast
Date decision recorded in register and issued to parties:
