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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cassidy v Bradagh Fuels Limited [2011] NIIT 61_10IT (06 January 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/61_10IT.html Cite as: [2011] NIIT 61_10IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 61/10
CLAIMANT: Gerald Damian Cassidy
RESPONDENT: Bradagh Fuels Limited
DECISION
The unanimous decision of the tribunal is that it was reasonably practicable for the claimant to have presented a claim to the Industrial Tribunal within the period of three months from the effective date of termination of his employment, and therefore his claim is dismissed.
Constitution of Tribunal:
Chairman: Mr Uel Crothers
Members: Mr Ian O’Hea
Mr Joe Patterson
Appearances:
The claimant appeared and represented himself.
The respondent did not appear and was not represented.
The Claim
1.
The claimant claimed that he had
been unfairly dismissed by the respondent. The respondent denied these
allegations in its response. The tribunal proceeded to hear the claim, taking
into account information in its possession made available to it by the
parties. The tribunal had no evidence before it that the Respondent was
legally insolvent.
The Issues
2.
The issues before the tribunal
were as follows:-
(i)
Whether the claim for unfair
dismissal was presented within a period of three months from the effective date
of termination of the claimants’ employment, or within such further period as
the tribunal considers reasonable in a case where it is satisfied that it was
not reasonably practicable for the claim to be presented before the end of the
period of three months.
(ii)
Whether, if the claim is in time,
the claimant was unfairly dismissed.
Sources of Evidence
3.
The tribunal heard evidence from
the claimant and considered relevant documentation in the course of the hearing.
Findings of Fact
4. Having considered the evidence insofar as same related to the first issue before it, the tribunal made the following findings of fact, on the balance of probabilities:-
(i)
The effective date of termination
of the claimant’s employment was 16 September 2009. He presented his claim to
the tribunal on 21 December 2009. The claimant had already received payments
from the respondent, including a redundancy payment.
(ii)
During the week following the
effective date of termination of his employment, the claimant sought advice
from a firm of Solicitors. At that stage he had completed the substance of the
claim form which was before the tribunal. This claim form was ultimately dated
17 December 2009. At the stage at which the claimant sought Solicitor’s
advice, he knew that there was a three month time limit for the presentation of
the claim. Subsequently, on 19 October 2010, the claimant’s Solicitors
forwarded a grievance letter dated 19 October 2009, signed by the claimant, to
the respondent’s address raising a formal grievance under the Statutory
Grievance Procedure stating as follows:-
“My grievance is as follows:
I believe that Bradagh Fuels have work for me and have made me redundant as an
excuse to get rid of me.
Yours faithfully
Damian
Cassidy”
(iii)
The tribunal accepts that certain
discussions took place with the Solicitors engaged by the claimant in relation
to costs. However, when the claimant knew that the three month time period was
about to expire, further discussions with his Solicitors ensued, as a result of
which the claim was presented to the tribunal on 21 December 2009, outside the
three month time period.
The Law
5. The Law in relation to the period for
presenting a tribunal claim is set out in Article 145 of the Employment Rights
(Northern Ireland) Order 1996. The tribunal also considered the leading case
of Palmer and Saunders v Southend-On-Sea Borough Council (1984) IRLR 119.
This case held that the words “reasonably practicable” lies somewhere between
reasonable on the one hand and reasonably physically capable of being done on
the other. It further held that the best approach is to read “practicable” as
the equivalent of “feasible” and ask “was it reasonably feasible to present the
complaint to the Employment Tribunal within the relevant three months?”
Conclusions
6. Having applied the relevant principles of law to the facts, the tribunal concludes that it was reasonably practicable in the sense of being reasonably feasible for the claimant to have presented his claim to the Industrial tribunal within three months from 16 September 2009. It is therefore unnecessary for the tribunal to consider the second issue before it, and the claimant’s claim is therefore dismissed.
Chairman:
Date and place of hearing: 7 December 2010, Strabane.
Date decision recorded in register and issued to parties: