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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Martins & Ors v Atlanco Ltd [2005] NIIT 759_04 (30 September 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/759_04.html Cite as: [2005] NIIT 759_04, [2005] NIIT 759_4 |
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CASE REF: 759/04
760/04
761/04
762/04
CLAIMANTS: Gilberto Manuel Martins
Anibal Da Silva Martins
Maria Jose Barus Da Silvas
Joao Carlos Silva Fonseca
RESPONDENT: Atlanco Ltd
The decision of the tribunal is that the tribunal does have jurisdiction to hear the claimants' complaints in view of the provisions of Article 55 of the Employment Rights (Northern Ireland) Order 1996 and Article 7 of the Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order 1994.
Constitution of Tribunal:
Chairman: Ms M Sheehan
Appearances:
The claimants were unrepresented and the third named claimant did not attend the hearing. The other claimants appeared at hearing.
The respondent was represented by Mr B. Cole, Solicitor from Diamond Herron Solicitors.
Mr Jonathon Bottomley was present as interpreter for the proceedings.
(a) The parties disputed the exact circumstances of termination of the first named claimant's employment with the respondent. This claimant had commenced employment on 18 April 2003 and understood that his contract was to last for six months until 18 October 2003. The claimant alleged that his employment was unlawfully terminated on 6 August 2003 and he received no payments in respect of monies owing after that date. The claimant raised the matter of outstanding monies on 14 August 2003 with the respondent at a meeting in Dublin. The Office of the Industrial Tribunals and Fair Employment Tribunal did not receive the first named claimant's complaint until 22 March 2004.
(b) The parties disputed the exact circumstances of termination of the second named claimant's employment with the respondent. This claimant had commenced employment with the respondent on 1 October 2002. The claimant alleged that his employment was unlawfully terminated on 13 August 2003 and he received no payments in respect of monies owing after that date prior to lodging his application with the industrial tribunals. This claimant also attended a meeting in Dublin with the respondent on 14 August 2003. The Office of the Industrial Tribunals and Fair Employment Tribunal did not receive the second named claimant's complaint until 22 March 2004.
(c) The exact circumstances of termination of the third named claimant's employment with the respondent were disputed by the parties. The claimant alleged that her employment was unlawfully terminated on 29 June 2003 and she received no payments in respect of monies owing after that date prior to lodging her application with the industrial tribunals. In October 2003 she visited offices of Atlanco in Portugal to raise these issues but was merely advised she had to raise matters with their office in Dublin. This claimant explained that she did not have adequate English to do so. The Office of the Industrial Tribunals and Fair Employment Tribunal did not receive the third named claimant's complaint until 22 March 2004.
(d) The exact circumstances of termination of the fourth named claimant's employment with the respondent were disputed by the parties. The claimant alleged that his employment was unlawfully terminated on 31 July 2003 and he received no payments in respect of monies owing after that date prior to lodging his application with the industrial tribunals. Further he believed that the rate of pay provided to him reflected a deduction made by the respondent in respect of flights arranged from Portugal to Ireland. This claimant had made his own flight arrangements to Northern Ireland and throughout his employment had raised this concern with employees of the respondent. The matter had not been clarified at the termination of his employment. This claimant also attended a meeting in Dublin with the respondent on 14 August 2003 where the question of outstanding monies was raised with the respondent. The Office of the Industrial Tribunals and Fair Employment Tribunal did not receive the fourth named claimant's complaint until 22 March 2004.
(e) It was common case between the parties that all the claimants were working for the respondent at premises owned by O'Kane Poultry in Ballymena at the date their employment terminated. In June 2003 the respondent issued at least two notices to staff in Ballymena advising that O'Kane Poultry intended to displace Atlanco Portuguese and Spanish staff with workers from Romania and the Ukraine. The 15 August 2003 was indicated to be Atlanco's last day on the Ballymena site. Atlanco employees were advised, "we will do everything possible to find alternative employment within the Atlanco group".
(f) The contractual documentation provided by the respondent to its employees was written in both English and Portuguese. Clause 2 provided amongst other details that "the length of the Assignment cannot be guaranteed and Atlanco may instruct the Operative to end the Assignment at any time". Assignment is defined in the document as the "duration of our employment with Atlanco's Client" and "Operative" referred to the particular employee identified on the document. Clause 8 provided that final settlement of an operative account would be made on the 20th of the month following completion of the assignment. Clause 13 provides that the document is to be governed by and construed in accordance with English Law.
(g) The respondent's representative, namely Mr P Lyons, at the meeting on 14 August 2003 indicated that he required some further time before he could address the issues raised with him. The first named claimant, who appeared to the tribunal to be the only claimant who could speak and read in English, had advised Mr P Lyons that if he heard nothing he would see him in court.
(h) The ex-employees of the respondent based in Ballymena had clearly determined to act as a group in an effort to resolve the financial matters they considered outstanding on the termination of their employment with the respondent. Many of the employees had little or no English, including two of the four claimants before the tribunal on the day of hearing. The fourth named claimant appeared to this tribunal to have limited understanding of the English language, which was in excess of his understanding in August 2003.
(i) The reason for the delay in submitting the applications to the tribunal arose from a belief that the law in the EEC was the same throughout the fifteen member states, as it then was. The tribunal found no reason to doubt the claimant's assertion that in Portugal there was a six-year timescale to initiate court proceedings for complaints such as the claimants were bringing forward in March 2004. The claimants, who appeared at hearing, were all in alternative employment in Northern Ireland by 18 August 2003. They would lose pay if absent from work and felt vulnerable to dismissal if they missed work. The claimants who appeared at hearing were anxious to work as many hours as were offered to them by their employer. Up to the end of September 2003 the claimants were hoping that the respondent would resolve the outstanding monies discussed with Mr Lyons on 14 August 2003. The variety of shifts worked by all the ex-employees created difficulties in arranging meetings which all could attend with a view to gaining a consensus amongst them as to the appropriate way to progress matters. The need for a consensus between the respondent's ex-employees from Portugal would appear related to the Portuguese culture and way of living.
(j) The establishment of the Ballymena Community Forum for Racial Harmony occurred at the end of November 2003. The first meeting essentially was about the election of office holders and the funding of the group. In January 2004 the first named claimant mentioned to another member of the Forum his difficulties with the respondent. As a result of that discussion he was put in contact with a member of the Multi Cultural Resource Centre Northern Ireland in February 2004. Neither of these contacts had any knowledge or experience of employment law but assisted the claimant and others in preparing statements of events and arranged a meeting for them with the Equality Commission. While this tribunal did not hear any evidence as to the arrangements involved in arranging the meeting with the Equality Commission it is clear from an earlier decision of the tribunal issued on 10 February 2005 that this meeting took place in February 2004 after several attempts to arrange the meeting.
(k) The fourth named claimant in or about the end of October 2003 and November 2004 mentioned brief details of his wages and contract dispute to a solicitor in Ballymena, while there with a colleague who had suffered an industrial injury during his employment. He was advised that employment law was not the field of expertise of that solicitor. Although the name of a solicitor firm was pointed out to the fourth named claimant in the yellow pages as a firm involved in such areas of law he did not pass this information to any of the other claimants. At that time he had little money and did not feel confident in his English to try and explain these matters to a lawyer on the telephone. No one mentioned to him the three-month time limit that applied generally in employment disputes. He had mentioned the solicitor's comments to his father, who was also a member with the first named claimant of the Ballymena Community Forum and assumed that the information had been passed on.
that the same rules must apply to all claimants. It is clear from these authorities for the tribunal to consider as to when it was reasonably practicable or feasible for the claimants to lodge their applications and require an examination of the circumstances of the claimants failure to lodge until the date the application is received in the Office of the Industrial Tribunals and Fair Employment Tribunal.
Chairman:
Date and place of hearing: 30 September 2005, Belfast.
Date decision recorded in register and issued to parties:
