McCallion v Winemark [2004] NIIT 9240_03 (18 October 2004)


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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCallion v Winemark [2004] NIIT 9240_03 (18 October 2004)
URL: http://www.bailii.org/nie/cases/NIIT/2004/9240_03.html
Cite as: [2004] NIIT 9240_03, [2004] NIIT 9240_3

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 9240/03

    APPLICANT: Anthony Dominic McCallion

    RESPONDENT: Winemark

    DECISION ON A PRELIMINARY ISSUE

    The unanimous decision of the tribunal is to exercise its discretion and extend the time limit for the applicant to present his claim of unfair dismissal.

    Appearances:

    There was no appearance by either party but both had presented written submissions for the tribunal to consider and had notified the tribunal that they would not be attending the hearing but relying on these written submissions.

  1. The tribunal considered both submissions which were comprehensive and dealt with the factual basis for both the applicant's reasons why he thought time should be extended and the respondent's objections thereto.

  2. It was common case that there was an incident on 12 April 2003 which led to the applicant's dismissal on 25 April 2003. It was also established from the applicant's medical reports that he had sought help for serious depression on 16 April 2003 and had been referred to a community psychiatric nurse at that time. He was assessed by Colum Devlin, community psychiatric nurse and Dr Hussein at that time on 16 April 2003. The tribunal accepts that he was prescribed anti-depressant medication and he appealed the decision to dismiss him. As a result of his medical condition the community psychiatric nurse contacted the employer to have the appeal adjourned. The respondent agreed to this. The meeting was rescheduled for 22 May but had to be postponed again because of medical advice. The applicant contacted the respondent in August 2003 and asked to have an appeal but it was common case that no appeal was held until October 2003 and it was unsuccessful. The applicant presented an originating application to the tribunal which was dated 10 November 2003. The tribunal considered the consultant psychiatrist's report which was prepared for the tribunal on 22 April 2004. The salient features of the report are that the consultant saw him on 16 April 2003 and had continued to review him up to and including 22 April 2004. The applicant was still on the maximum dosage of current anti-depressant medication in March 2004 and the consultant stated that his symptoms got worse in April following the work incident. He continued to experience a mixture of anxiety and depression symptoms most of the time over the following twelve months. Both the consultant and Mr Devlin expressed the belief that the applicant was not in a mental state to make appropriate decisions during the period when he was suspended and after his dismissal. The consultant stated that his symptoms have continued and actually got worse since Christmas last year. The tribunal also accepted that the applicant was not legally represented during this period and although the respondent submitted that the applicant took steps in that he contacted the respondent about an appeal, we accept the medical evidence before us that the applicant's state of mind was not such that he could have presented an application at that time.

  3. We have considered the factors in relation to extending time for a case such as this and are satisfied that the applicant has no other form of redress other than a claim to the tribunal. The respondent is not taken unawares. They have been aware of this claim for some time. Once the applicant had his appeal hearing, he presented an originating application shortly there afterwards with the help of legal advisers. He continues to have an ongoing medical condition which may well have prevented him from making a claim. Looking at all these factors the tribunal has decided to exercise its discretion and extend the time limit for presenting a claim to the tribunal.

    4. _____________________________________

    M P PRICE

    Vice President:

    Date and place of hearing: 18 October 2004, Strabane

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/9240_03.html