THE INDUSTRIAL TRIBUNALS

CASE REF:	7461/09

CLAIMANT:			Jonathan Walker

RESPONDENT:		BMC Engineering NI Ltd (in liquidation)

DECISION
The decision of the tribunal is that:-

(1)	The respondent is ordered to pay to the claimant the sum of £1,925.00 in respect of a redundancy payment.

(2)	The claimant’s claim for breach of contract in respect of notice pay/holiday pay/loss of earnings was out of time and the tribunal does not have jurisdiction to consider the said claim.  The claim of breach of contract is therefore dismissed.

Constitution of Tribunal:
Chairman (sitting alone):		Mr Neil Drennan QC

Appearances:
The claimant was represented by Mr M Dickson, Solicitor, of C T McAlpine & Sons, Solicitors.
The respondent did not appear and was not represented.

Reasons

1.1	The claimant presented a claim to the tribunal on 5 November 2009, which was accepted by the tribunal in which he made a claim for a redundancy payment and also a claim for breach of contract for notice pay and/or holiday pay and/or loss of earnings.  The respondent did not present a response to the said claim.  It will be necessary to set out, later in this decision, further details in relation to the history of these proceedings.

1.2	The respondent was wound up by the High Court in Northern Ireland on 23 April 2009.  By order of 7 July 2010, Master Kelly gave leave to the claimant to proceed with his Industrial Tribunal claim against the claimant.

2.1	I made the following findings of fact, insofar as relevant and material, in the following sub-paragraphs.

2.2	The claimant was employed by the respondent as a foreman from in or about July 2000 until 7 November 2008, when his contract of employment was terminated, without notice, on the grounds of redundancy.

2.3	The claimant initially presented a claim to the tribunal on 1 May 2009 in which he made a claim for a redundancy payment and also a claim for breach of contract in respect of notice pay and/or holiday pay and/or loss of earnings.  In relation to the claimant’s claim for a redundancy payment, this claim was expressly rejected by the tribunal, by letter dated 3 June 2009, under the tribunal’s acceptance procedure, as set out in the Industrial Tribunals Rules of Procedure 2005 on the grounds that the claimant had not raised the subject-matter of the complaint in writing prior to presenting his said claim.  In the letter dated 3 June 2009, the claimant was also informed, inter alia, that the original time-limit for commencing the proceedings had been extended by three months; but also made clear the claimant should submit his written statement of grievance not later than one month after the original time-limit had expired.  In the above circumstances, the claimant issued a further claim on 5 November 2009, as referred to above, which was in similar terms to the previous claim presented on 1 May 2009; but referred to the fact that the claimant had made a written grievance on 9 June 2009.  

2.4	In a decision of the Employment Appeal Tribunal in the case of Allen  v  Murdoch [2009] UKEAT/0361, it was held that a claimant’s claim for a redundancy payment does not require compliance with the statutory grievance procedure; and in light of the said decision, this claimant’s claim for a redundancy payment did not require the said claim to be rejected and a new claim to be issued by the tribunal, as set out above.  Under Rule 3(8) of the Industrial Tribunals Rules of Procedure 2005, a decision not to accept a claim shall not bind any future tribunal or Chairman where any of the issues relating to whether a claim should be accepted or rejected fall to be determined later in the proceedings.  I am therefore entitled to conclude that the claimant’s claim for a redundancy payment, presented on 1 May 2009, should be accepted.

	Thus, I am satisfied the claimant’s claim for redundancy payment, having originally been made on 1 May 2009, was within time, having been made within six months of the date of termination of his employment (see further Article 199(1) of the Employment Rights (Northern Ireland) Order 1996 [‘the 1996 Order’]).

	Even if I am wrong, I am satisfied that the claimant, having issued a second claim for redundancy payment on 5 November 2009, had done so within the further six month period following the date of the termination of his employment, and that it is just and equitable the claimant should receive a redundancy payment, given the correspondence from the tribunal on 3 June 2009, which was, for the reasons set out above unnecessary, but which, as stated in evidence, resulted in some confusion for the claimant and his solicitor.  (See further Article 199(2) of the 1996 Order.)

2.5	At the date of the termination of his employment, the claimant was aged 25 years and earning the sum of £360.00 gross and £280.70 net per week.

2.6	I am therefore satisfied the claimant is entitled to be paid a redundancy payment by the respondent and I order the respondent to pay to the claimant a redundancy payment in the sum of £1,925.00, made up as follows:-

			5.5 x £350.00 (subject to statutory cap)			£1,925.00

3.1	As stated previously, it is necessary to consider further the history of these proceedings, having regard to the claimant’s further claim of breach of contract.  

	I am satisfied that, in the claimant’s claim form, presented to the tribunal on 1 May 2009, he referred to his claim of breach of contract for notice pay and/or holiday pay and/or loss of earnings.  Although the claim form was referred to the Secretary of the Tribunals and subsequently a Chairman, in accordance with the claim form acceptance procedures contained in Rule 3 of the Industrial Tribunals Rules of Procedure 2005, it would appear from the letter of the tribunal dated 3 June 2009, that only the claimant’s claim for redundancy payment was considered and not accepted for the reasons set out in the said letter (see further Paragraph 2.3 above).  The claimant’s claim of breach of contract was not referred to in the said letter and I am therefore satisfied, from consideration of the file, that no decision was taken under the said procedures either to accept the claim or reject the said claim of breach of contract.

3.2	I am satisfied that, if the claimant’s claim for breach of contract, had been the subject of the acceptance procedure, it would have been likely to be accepted.  However, the statutory grievance procedure is not required to be followed for such a claim.  But equally where the statutory grievance procedures do not apply, no extension of time to bring such a claim, pursuant to Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, would apply.  A breach of contract claim therefore requires to be brought within three months of the date of termination of the claimant’s employment.  In this case therefore the claimant’s claim for breach of contract required to be brought within three months of the date of the termination of the claimant’s employment on 7 November 2008.  Time can be extended, if the tribunal is satisfied it was not reasonably practicable to bring the claim within the said three month period.  (See further Article 7 of the Industrial Tribunal Extension of Jurisdiction Order (Northern Ireland) 1994.)  Thus, subject to any issue of extension, when the claimant presented his claim of breach of contract on 1 May 2009, his breach of contract claim was already out of time.  Even if the claim of breach of contract had been accepted, under the acceptance procedures, and the claimant so informed by letter dated 3 June 2009, the issue of time would still have been required to be considered by the tribunal at a substantive hearing.  If the claim was out of time and no extension was granted, the tribunal does not have jurisdiction to hear the said claim and it has to be dismissed.

3.3	On the evidence of the claimant, I am satisfied that, at the date of the termination of his employment on 7 November 2008, the claimant was entitled to notice pay, two weeks holiday pay and two weeks loss of earnings.  I am further satisfied that, by letter dated 18 November 2008, the claimant had written to the respondent seeking such sums and, in the absence of response, had sought payment from the Department for Employment & Learning on 28 November 2008, which application was rejected by letter dated 17 February 2009.  The claimant sought advice from his solicitor in or about March 2009.  Following the letter dated 3 June 2009 from the tribunal, the claimant sent to the respondent a statutory grievance letter dated 9 June 2009, which referred to the claimant’s breach of contract claims, as well as his claim for redundancy payment.  The claimant then, as set out previously, presented a further claim to the tribunal on 5 November 2009, which was in similar terms to the previous claim form presented to the tribunal on 1 May 2009, other than the reference to the grievance letter dated 9 June 2009.  This claim, presented to the tribunal on 5 November 2009 was accepted by the tribunal by letter dated 1 December 2009.  The only reason given in evidence to the tribunal for the delay in issuing the further proceedings for breach of contract until 5 November 2009 was that a response was awaited to the grievance letter dated 9 June 2009; and when, after no reply was made, it was decided to issue the further proceedings.  It has to be noted that this further claim for breach of contract was almost 12 months since the termination of the claimant’s employment.

3.4	As with the claim form presented to the tribunal on 1 May 2009, the claimant’s claim of breach of contract contained in the claim form presented on 5 November 2009 was out of time, subject to any issue of extension of time.  

3.5	I think it would have been possible for me, having regard to the terms of the overriding objective, contained in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, to have decided, at this hearing, to accept the claimant’s claim form, in which he made his breach of contract claim, presented to the tribunal on 1 May 2009.  (See further Unison & Another  v  National Probation Service Yorkshire & Another [2010] UKEAT/0339.)  However, even if I was to do so, I am satisfied that I would have reached the same conclusion as I have reached, as set out below, in respect of the claimant’s claim for breach of contract made in the claim form presented on 5 November 2009 and accepted by the tribunal, as set out above, under the acceptance procedures.

3.6	Whether the claim of breach of contract presented to the tribunal on 1 May 2009 or the claim of breach of contract presented on 5 November 2009 is considered, the said claim for breach of contract was at all times out of time, subject to the issue of any extension of time.  Neither claim was brought within three months of the date of the termination of the claimant’s employment.

3.7	I accept the failure of the tribunal to either accept or reject the claimant’s claim of breach of contract presented on 1 May 2009 led to confusion on the part of the claimant, as he acknowledged in evidence, when he received the tribunal’s letter of 3 June 2009; and, in particular, the wording of the letter with its reference to only the claimant’s claim for a redundancy payment but also the reference to the necessity to send a written grievance to the respondent and the extension of time of three months for the proceedings.  I accept that he did not appreciate any reference to the above matters expressly related to the claimant’s claim for redundancy payment and not his breach of contract claim.  

3.8	The claimant, on 9 June 2009, following the correspondence from the tribunal dated 3 June 2009, sent the written statutory grievance to the respondent; but did not issue any new proceedings for breach of contract until 5 November 2009, which as stated above was out of time, subject to any extension of time.  It has to be remembered that the extension of time on the grounds that it was not reasonably practicable to present a claim within the three month period is much stricter than the ‘just and equitable ground’, which is applied in relation to discrimination cases.  Reasonably practicable means no more than ‘not feasible’ (see further Palmer & Saunders  v  Southend-on-Sea BC [1984] IRLR 119.  However, allowing for the confusion arising from the unusual circumstances which occurred in this case, where the claimant’s claim of breach of contract, as set out in the claim form presented on 1 May 2009, was neither accepted or rejected by the tribunal on foot of the acceptance procedures, I was prepared to extend the time on the reasonably practicable grounds until three months after the date of the tribunal’s letter of 3 June 2009 – namely 3 September 2009.  Indeed, if I had been required to consider the claimant’s claim of breach of contract presented to the tribunal on 1 May 2009, I would have also extended time for that claim to 3 September 2009 for the same reasons.  However, I was not prepared, on the reasonably practicable grounds, to extend time any further.  In particular, no evidence was produced to me for the further delay until 5 November 2009, when the claimant issued the second set of proceedings, other than the claimant was awaiting a response from the respondent to the grievance letter of 9 June 2009.  This, in my view, did not prevent the claim being made before 3 September 2009.  In particular, between 9 June 2009 and 3 September 2009, it would have been reasonably practicable for the claimant to have presented his claim of breach of contract.  Indeed, any failure to reply by the respondent would not have been surprising, given the respondent had not replied to previous correspondence and at all material times the claimant knew that the respondent had ceased to trade from 7 November 2008.  The fact that longer time-limits were applicable to a claim for a redundancy payment did not prevent the claimant making his claim for breach of contract on or before 3 September 2009.

3.9	In the circumstances, I am satisfied it was reasonably practicable for the claimant to have made his claim for breach of contract before 3 September 2009.  Having failed to do so, I am not prepared to extend the time any further and the claimant’s claim for breach of contract was out of time and the tribunal has no jurisdiction to hear the said claim of breach of contract and it must be dismissed.

4.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	9 November 2010, Belfast

Date decision recorded in register and issued to parties: