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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Wilkinson v Rentokil Initial UK Cleaning [2007] NIIT 1080_06 (16 February 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/1080_06.html Cite as: [2007] NIIT 1080_6, [2007] NIIT 1080_06 |
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CASE REF: 1080/06
CLAIMANT: Joseph Wilkinson
RESPONDENT: Rentokil Initial UK Cleaning
The decision of the tribunal is that:-
(a) It was not reasonably practicable for the claim form to be presented by 12th April 2006 which was the original time limit for presentation of the claim.
(b) The tribunal considers that it would have been reasonable to present the claim form by 27th May 2006.
(c) The claim form was in fact presented on 25th July 2006. It was presented out of time and consequently the tribunal does not have jurisdiction to entertain the claim, and it is dismissed.
Constitution of Tribunal:
Chairman (Sitting alone): Mr Travers
Appearances:
The claimant did not attend and was not represented.
The respondent did not attend and was not represented.
ISSUES
1. This case was listed for pre-hearing review to determine two issues.
- Whether the tribunal has jurisdiction to entertain the claimant's complaint in view of the provisions of Article 55 of the Employment Rights (NI) Order 1996 and Regulation 30(2) of the Working Time Regulations (NI) 1998 in relation to the time limit for presenting the complaint.
- 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.
2. Neither party attended, nor was either party represented at the hearing.
3. On 15th November 2006 the respondent faxed brief submissions to the tribunal. The submissions addressed the substantive merits of the claims rather than the preliminary issues listed for this hearing. Consequently the submissions have not provided any assistance on the matters to be determined at the pre-hearing review.
4. No explanation was provided by the claimant for his non-attendance.
5. In all the circumstances the tribunal decided to proceed with the hearing.
6. Prior to reaching a decision, the tribunal considered the information in its possession which had been made available to it by the parties.
FACTS
7. The claimant was employed by the respondent from February 2003 until his retirement on 13/01/06. By a claim form received by the tribunal on 25th July 2006, the claimant claims unpaid wages and unpaid holiday pay. The claim form was presented to the tribunal more than six months after the date of termination of the claimant's employment on 13th January 2006. Consequently this pre-hearing review was listed in order to deal with the time related issues set out at paragraph 1 above.
8. On 23rd December 2005, shortly before his retirement, the claimant had an accident at home which resulted in his being hospitalised for a period of three weeks. After his discharge from hospital the claimant had a further period of recovery at home. The claimant states in his claim form that as a result he was unable to begin the process of negotiation with the respondent until late February. He asks, "therefore that 28 February be regarded as the relevant starting point". The claimant makes this request because he says, "the six month time limit from 13 January has passed".
9. There is a dispute between the parties as to when, or indeed whether, the claimant sent a grievance letter to the respondent.
10. At paragraph 5.5 of the claim form the claimant was asked whether he had put his complaint in writing to the respondent. He ticked the box marked "no", but filled in "4/4/06" as the date when he had sent a written complaint to the respondent.
11. At paragraph 3.5 of the response form, the respondent denies that the claimant has raised the substance of the claim in writing under a grievance procedure. At paragraph 3.6 of the response form it is written, "The claimant states in his IT1 that he raised a grievance in writing on 04/04/06, however the respondent is not aware of any outstanding grievance from the claimant."
12. In addition to the written complaint which the claimant says that he sent on 04/04/04, it is stated at paragraph 12 of the claim form that he, "wrote twice to my employer on 5th April and again on 2nd May. CAB wrote on my behalf on 23rd May. The company has not responded at all."
13. Neither the response form, nor the written submissions provided by the respondent, comment on the suggestion that the claimant wrote to the respondent as he alleges at paragraph 12 above.
LAW
14. A claim for unauthorised deductions of wages will not be considered by a tribunal unless it is presented within three months of the date of the deduction. If the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the three month period, the tribunal may consider the complaint if it was presented within such further period as the tribunal considers reasonable – Article 55 of The Employment Rights (Northern Ireland) Order 1996.
15. Regulation 30(2) of the Working Time Regulations (NI) 1998, and Article 7 of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994, contain similar provisions in respect of the time limit for presenting complaints in respect of unpaid holiday pay and breach of contract respectively.
16. The question of "reasonable practicability" for presentation of a claim within the three month time limit was considered by Brandon LJ, sitting in the Court of Appeal of England and Wales in Wall's Meat Co. Ltd v Khan [1978] IRLR 499 at paragraph 44.
He suggested that: "the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant…".
17. The three month time limit for presentation of the claim may be extended to six months if the complainant has sent a written statement of grievance to the employer within the normal three month time limit – Regulation 15 of The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. If the claim is not presented within the extended six month time limit, a claimant wishing to present a claim must fall back on the tribunal's discretion to extend the original three month time limit for such period as the tribunal considers reasonable on the grounds that it was not reasonably practicable to present the claim within the three month time limit.
CONCLUSION
18. The primary three month limitation period ran from the date of the claimant's retirement on 13th January 2006. This period expired on 12th April 2006.
19. If the claimant had sent the respondent a written statement of his grievance before 12th April 2006, the time limit for presentation of his claim to the tribunal would have been extended to 12th July 2006.
The claim was not in fact presented until 25th July. Consequently, even if a written statement of grievance had been sent before 12th April, the presentation of the claim would have been after the expiry of the extended time limit. Accordingly the tribunal does not need to resolve the dispute as to whether or not a written statement of grievance was sent on 04/04/06.
20. The tribunal has to consider two questions:
- Was it reasonably practicable to present the claim within the original 3 month time limit?
- If it was not reasonably practicable, what extension of time does the tribunal consider reasonable?
21. The claimant makes an unchallenged assertion in his claim form that, as a result of an accident at home on 23rd December 2005, he was unable to commence the process of negotiation with the respondent until the end of February. The claimant asks, "therefore that 28 February be regarded as the relevant starting point".
22. On the information before it, the tribunal is prepared to accept that, by reason of ill health related to his accident, the claimant was unable to address his mind to the question of any potential claim until 28th February. This gave him just six weeks to present his claim prior to the expiry of the time limit on 12th April 2006. In the circumstances the tribunal finds that it was not reasonably practicable for him to comply with the time limit.
23. The tribunal considers it reasonable to extend the time for presentation for a period of three months commencing 28th February. The time for presentation therefore expired on 27th May 2006. The claim form discloses no information which might indicate that it would not have been reasonably practicable to present the claim by 27th May 2006.
24. In the circumstances, the claim has been presented out of time and the tribunal does not have jurisdiction to entertain any of the claims.
Chairman:
Date and place of hearing: 16 November 2006 at Belfast
Date decision recorded in register and issued to parties:
