THE INDUSTRIAL TRIBUNALS

CASE REF:	6191/09

CLAIMANT:			Kirsty McLarnon

RESPONDENT:		Philip Eager t/a Tates Avenue Filling Station

DECISION ON A PRE-HEARING REVIEW

An industrial tribunal has no jurisdiction to entertain the claimant’s claim of unfair dismissal because the claim has not been presented within the applicable time-limits. Accordingly, that claim is dismissed.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Buggy		

Appearances:
The claimant appeared in person.

The respondent appeared in person. 

REASONS

1.	Neither of the parties to these proceedings has any legal qualifications or any legal experience.  However, the issues have been well argued, on both sides of the case.

2.	The claimant was employed as manageress of the Filling Station at Tates Avenue, Belfast, for more than seven years.  The respondent took over the business in November 2008.  In March 2009, he sacked the claimant.  In these proceedings, the claimant makes a claim of unfair dismissal. 

3.	This is my determination in respect of the following issue, which was the subject of this Pre-Hearing Review:

“Whether [an industrial tribunal] has jurisdiction to entertain the claimant’s claim, in view of the time-limit requirements which are set out in Article 145 of the Employment Rights (Northern Ireland) Order 1996 and in the Dispute Regulations 2004?”

Article 145

4.	In the circumstances of this case, the applicable time-limits are to be found only in Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).

5.	Article 145(2) is in the following terms:

“(2) Subject to paragraph (3), 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 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”.

6.	Accordingly, the scheme of Article 145 can be summarised as follows.  First, there is a primary time-limit of three months.  Secondly, there is a secondary time-limit (as provided for in Article 145(2)(b) of the Order).  However, that secondary time-limit is available only if I am satisfied, on the balance of probabilities, that it was not reasonably practicable for the complaint to be presented within the primary time-limit.	

7.	The primary time-limit begins with the effective date of termination.  That is the date on which the claimant was notified of her dismissal.  I am satisfied, and it is agreed between the parties, that in this case the claimant received the letter of dismissal on or about 6 March 2009.  Accordingly, the primary time-limit expired on or about 6 June 2009.  However, the claimant’s claim was not presented until 18 June 2009.  Therefore, as the claimant accepts, the claim was not presented within the primary time-limit.

8.	The central issue in this case was whether or not I was satisfied that it was not reasonably practicable for the complaint to be presented by or about 18 June 2009.

The facts

9.	This Pre-Hearing Review originally came on for hearing on 14 October 2009.  On that date, the claimant testified on oath as to the circumstances in which she had failed to present the claim within the primary time-limit.  During the course of her evidence on that occasion, the claimant asserted that she had been misled in relation to the time-limits issue, by what she was told, and by what she was not told, by Labour Relations Agency officials, during the course of conversations which she had had with them around the time of the dismissal. 

10.	 Because of those assertions, I adjourned the hearing, to allow the claimant to consider whether to call the relevant officials and (if she did decide to call them) to allow time for those officials to be given due notice of the date of the resumed hearing.

11.	The claimant did decide to call two officials of the LRA, Ms Anne McQuillan and Ms Anne Beattie.  The adjourned hearing of this Pre-Hearing Review resumed on 3 December 2009.  On that date, I heard evidence from Ms McQuillan and Ms Beattie.

12.	During the December hearing, the claimant accepted that, at all material times, she knew, or expected, that there was a time-limit in respect of the presentation of these proceedings. However, she told me, she did not know what that time-limit was.

13.	Against that background, it has been unnecessary for me to arrive at definitive conclusions on the question of whether or not the claimant was indeed misled, by what she was told, or by what she was not told, when she contacted the LRA for advice.  (The reasons why I do not have to arrive at definitive conclusions on those matters are explained below).

14.	In passing, I wish to make it clear that I accept that Ms McQuillan and Ms Beattie each gave evidence which was true and accurate to the best of her knowledge, information and belief.

15.	At the heart of the claimant’s arguments in this case has been the proposition that, because of what she was advised, and was not advised, by LRA officials, she was under the misunderstanding that the time-limit in respect of commencement of a claim for unfair dismissal did not begin until the outcome of an internal appeal against dismissal had been announced.

16.	However, even if one were to accept the validity of that proposition, the claimant still faces the task of explaining why it took so long, after the outcome of the internal appeal in this case, for the claimant to present her claim.

17.	As already mentioned above, the claimant was dismissed in March 2009.  The outcome of her internal appeal became known to her on 16 May.  The proceedings were not commenced until a month later.  That month’s delay was explained by the claimant in her claim form in the following terms.   She said she was working in a new job and was doing a variety of early and late shifts.  (The claimant works at Belfast International Airport).  She said that, as a result, she did not get an opportunity to take legal advice until 17 June 2009.  In the meantime, she had made more than one attempt, by phone, to arrange a meeting with her chosen solicitor,  but 17 June was the earliest mutually convenient date.  On 17 June, she completed the claim form in these proceedings, having been informed by the solicitor of the potential time-limit problem.

The law

18.	In the context of Article 145, the term practicability means, broadly speaking, feasibility.

19.	Ignorance of the law does not have the effect of making the presentation of a claim not reasonably practicable unless that ignorance is ignorance on reasonable grounds.

Conclusions 

20.	In my view, it was reasonably feasible for the claimant to have sought and obtained, by 23 May at the latest, definitive legal advice on the length of the primary unfair dismissal time-limit. Although she did not know the length of the relevant primary limitation period until 17 June, her ignorance on that matter, throughout the previous three weeks, did not constitute ignorance on reasonable grounds.  The feasibility of seeking legal advice, soon after the announcement of the internal appeal decision, is fatal to the claimant’s arguments in respect of the time-limit issue.

21.	I realise there were factors which increase the difficulty of promptly finding out the relevant information.  First, the claimant was working outside Belfast.  Secondly, she did not have ready access to a mobile phone during much of the time when she was on duty at work.  Thirdly, there had been difficulties in scheduling a mutually convenient appointment with the solicitor of her choice.  However, none of those factors, whether taken singly or together, amounted to such an impediment as to render it not feasible for the claimant to have obtained prompt legal advice within the week immediately after the announcement of the failure of her internal appeal.

General comments

22.	The position of the claimant is that she was sacked for no good reason, on a pretext.  The position of the respondent is that the claimant was sacked for serious misconduct.  Because of the outcome of these proceedings, the claimant and the respondent will not be able to resolve that dispute in the course of industrial tribunal proceedings.

23.	The outcome of these proceedings does not of course affect any right which the claimant may have to commence proceedings in the County Court in respect of any claim which she might have in respect of notice pay, pursuant to Article 118 of the Order.  (It appears that a six year time-limit applies in respect of County Court claims for notice pay).

24.	The contrast between the length of the time-limit in respect of County Court notice pay claims, and the length of the time-limit in relation to industrial tribunal notice pay and unfair dismissal claims, is striking.  However, the law in relation to this matter is quite clear: In the circumstances of this case, I have no power to extend the primary time-limit.  I have no such power, because I am not satisfied that it was not reasonably practicable for the claimant to present her claim prior to the end of the primary time-limit.

Chairman:

Date and place of hearing:	14 October 2009 and 3 December 2009, Belfast.	

Date decision recorded in register and issued to parties: