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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Olphert v P & O Ferries Irish Sea (Gibra... [2010] NIIT 349_10IT (26 May 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/349_10IT.html Cite as: [2010] NIIT 349_10IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 349/10
CLAIMANT: Jacqueline Olphert
RESPONDENT: P & O Ferries Irish Sea (Gibraltar) Ltd
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the tribunal does not have jurisdiction to entertain the claimant’s claim in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limit for presenting a claim. The claimant’s breach of contract claim is dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Ms Bell
Appearances:
The claimant did not appear and was not represented.
The respondents were represented by Ms E Burnett, Solicitor, of McKinty and Wright Solicitors, instructed as agent by Nicholas Moore Specialist Employment Lawyers.
1. As summarised in the record of proceedings dated 21 April 2010 of a case management discussion on 19 April 2010, in these proceedings the claimant complains of breach of contract. According to the respondent the claim is out of time. The matters of which the claimant complains occurred in mid 2009.The claimant’s claim was received by the Office of the Industrial Tribunals on 15 February 2010.The claimant said that the reason for the delay in presenting her claim was that the claimant did not immediately discover (as the claimant alleges) the respondent was treating somebody else more favourably than they treated the claimant.
2. The title of the respondent is now amended to accord with the response presented by the respondent from P & O ( Irish Sea) to P & O Ferries Irish Sea (Gibraltar) Ltd
THE ISSUE
3. The issue before the tribunal was :
Whether the tribunal has jurisdiction to entertain the claimant’s claim in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limit for presenting a claim?
That is:
a. Was the claimant’s claim presented in time? If not,
b. Was it not reasonably practicable for it to be presented in time? If so,
c. Was it presented within such further period as the tribunal considers reasonable?
EVIDENCE
4. The tribunal considered the claim, response, bundle of documentation handed in on behalf of the respondent and heard submissions from the respondent’s representative.
FACTS FOUND
5. The claimant was employed by the respondent as a chef from September 2005.
6. The claimant went on maternity leave in 2008.
7. In June 2008 the claimant made a request to the respondent to allow her to return in September 2009 on varied working hours.
8. The claimant attended a meeting with the respondent on 17 July 2009 to discuss the claimant’s request, the respondent confirmed to the claimant at this meeting that her request was rejected but put other working proposals to her, these were declined as unsuitable.
9. The respondent wrote to the claimant on 12 August 2009 confirming the grounds and reasons why it did not grant her flexible working application and confirmed the alternative options it had suggested to her but which she had declined at their meeting. The respondent advised the claimant of her right to appeal against the decision but no appeal was received.
10. The claimant received the respondent’s letter on 13 August 2009 and sent a fax to the respondent on 25 September 2009 confirming her resignation in response to the respondent’s letter. The claimant made reference in her fax to having previously sent a letter of resignation to the respondent on 30 August 2009 by first class post which the respondent had apparently not received and for which reason she was now faxing them. No period of notice was given by the claimant to the respondent or notice pay paid by the respondent to the claimant. The claimant’s effective date of termination is 25 September 2009.
11. The claimant presented a claim to the Office of the Industrial Tribunals dated 11 February 2009 received on 15 February 2010 raising complaints of unfair (constructive) dismissal, victimisation and breach of contract. The parts of the claim relating to unfair (constructive) dismissal and victimisation were rejected. The part of the claim relating to breach of contract was accepted. The claimant stated in her claim that she had just been informed that an employee had been offered a job on the respondent’s fast craft from March 2010 with flexible hours which she had been denied and stated ,‘[t]herefore i do feel this is a breach of contract, i also feel victimised, at how one rule can be made for me and another for [an]other……..’ and ‘the reason this is out of my time scale is that I have firm knowledge of this case , and found this to be procedure to be breach……..’.
THE LAW
12. Article 7 of the 1994 Order provides that an industrial tribunal shall not entertain a complaint in respect of an employee’s 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
(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated ;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.
13. Article 3 of the 1994 Order allows proceedings to be brought before an industrial tribunal in respect of a claim for the recovery of damages or any other sum, as provided therein, arising or outstanding on termination of the employee’s employment.
14. Rule 27 at Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 provides that if a party fails to attend or to be represented (for the purpose of conducting the party’s case at the hearing under rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date. If a tribunal wishes to dismiss or dispose of proceedings in the circumstances, it shall first consider any information in its possession which has been made available to it by the parties.
15. Harvey on Industrial Relations and Employment Law /Division T /A/6 Extension of time for presentation of claims / 1 ( c) discusses the discovery of new facts and how this may make it not reasonably practicable to present a claim in time and states at Para 239 that ‘The leading case is Machine Tool Industry Research Association v Simpson [1988] IRLR 212, in which the Court of Appeal set out the principles that apply in such a situation. That was a case where the claimant, having been made redundant, sought to bring an unfair dismissal claim out of time on the ground that another employee had been re-engaged, thereby suggesting to her that there may not have been a redundancy situation at all. Purchas LJ, giving judgment, said that the determination of the issue of reasonable practicability in such a situation involves a study of the claimant's subjective state of mind. The claimant is not, therefore, required to prove the truth of the facts that led him to bring his claim. But in order to obtain the benefit of the escape clause, he must, according to Purchas LJ, establish three things: (i) that it was reasonable for him not to be aware of the factual basis upon which he could bring an application during the three-month limitation period (it being accepted that it cannot be reasonably practicable to bring a case based on facts of which he is ignorant); (ii) that the knowledge gained has, in the circumstances, been reasonably gained by him, and that that knowledge is either crucial, fundamental or important to his change of belief from one in which he does not believe that he has grounds for an application, to a belief which he reasonably and genuinely holds, that he has a ground for making an application; and (iii) that the acquisition of the knowledge is crucial to the decision to bring the claim in any event.’
APPLYING THE LAW TO FACTS FOUND
16. It is unclear precisely in what respect the claimant alleges that there was a breach of contract arising or outstanding on termination of her employment other than possibly an alleged breach of one of the respondent’s policies relating to part-time working or job share and flexible working, which the respondent contends are expressly non contractual.
17. It was submitted on behalf of the respondent that if there was a breach of contract by the respondent this must have crystallized at the time of the claimant’s resignation and that the respondent’s conduct after this should have no effect on the breach of contract claim.
18. Having heard submissions on behalf of the respondents, considered all the evidence before it and information in its possession and made available to it by the parties the tribunal finds that the claimant’s breach of contract claim should have been submitted at the very latest by 24 December 2009, the claimant’s effective date of termination being 25 September 2009, the date upon which the respondent was first aware of her having tendered her resignation rather than the earlier date of 30 August 2009 referred to by the claimant in her resignation fax. The claim was not however received by the Office of the Industrial Tribunals until 15 February 2010, some one and a half months outside the 3 month time limit required under Article 7 (a) of the 1994 Order and is accordingly out of time.
19. The onus is on a claimant to prove that presentation in time was not reasonably practicable, that is to show precisely why it was that she did not present her complaint. There is limited evidence before the tribunal and certainly not sufficient evidence upon which to determine the claimant’s subjective state of mind or to establish the three things needed to be established by the claimant to benefit from the ‘escape clause’ according to Purchas LJ, in Machine Tool Industry Research Association V Simpson .In particular, the tribunal is not persuaded on the evidence and information before it that the claimant becoming aware of another employee being offered flexible working hours from March 2010 transformed her belief that she had no case into a belief that she did. The tribunal is not satisfied on a balance of probabilities as such that it was not reasonably practicable for the claimant’s complaint to be presented within the required time limit.
20. There is no evidence before the tribunal of the actual date upon which the claimant alleges that she became aware of the ‘new fact’ referred to in her claim. The tribunal is not persuaded, had it been satisfied that it was not reasonably practicable for the complaint to be presented within the required time limit, that it was presented within such further period as the tribunal considers reasonable.
CONCLUSION
21. The tribunal does not have jurisdiction to entertain the claimant’s claim in view of the provisions of Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 regarding the time limit for presenting a claim and dismisses the claimant’s breach of contract claim under Rule 27 at Schedule 1 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
Chairman:
Date and place of hearing: 10 May 2010, Belfast.
Date decision recorded in register and issued to parties:
