THE INDUSTRIAL TRIBUNALS

										CASE REF: 1224/06

CLAIMANT:			Samuel Andrew Sloan

RESPONDENT:		Declan Birt T/A Minnesota Snooker Club

 							
DECISION

The preliminary issue is answered in the negative and the tribunal dismisses the claimant’s claim for unfair dismissal.  

Constitution of the Tribunal:

Chairman (sitting alone):		Mr B Greene

Appearances:

The claimant was represented by Mr G Watt, of counsel, instructed by James Ballentine & Son, Solicitors.

The respondent was represented by Mr P Moore of Peninsula Business Services Limited.

Sources of Evidence

1.	The Tribunal did not hear any evidence.  Both parties dealt with this application by oral submissions.  The Tribunal also had regard to the claim and the response. 

The Claim and Defence
 
2.	The claimant claims unfair dismissal.  The respondent dismissed the claimant for gross misconduct.  It further asserted that the claimant’s claim was outside the requisite time limits.

The Issues

3.	A pre-hearing review was listed to deal with the following issue:-

(a)	Whether the Tribunal has jurisdiction to entertain the claimant’s complaint in view of the provisions of Article 145 of the Employment Rights (Northern Ireland) Order 1996 regarding the time limit for presenting his complaint.

Findings of Fact 

4.	(a)	The respondent employed the claimant from 2003 to 19 June 2006 to carry out general duties in his snooker club.

(b)	On 18 June 2006 the respondent informed the claimant that his employment was being terminated from 19 June 2006.  

(c)	The claimant put in a complaint in writing to the respondent on August 2006.

(d)	The requisite three months for lodging a claim for an unfair dismissal claim expired on Monday 19 September 2006.

(e)	The claimant lodged a claim for unfair dismissal dated 3 August 2006 with the Office of Industrial Tribunals and the Fair Employment Tribunal (OITFET) on Thursday 21 September 2006.

(f)	The claimant’s solicitor posted the claim on Thursday 14 September 2006.  Though no evidence was given on this point Mr Moore for the respondent accepted that the claim had been posted on 14 September 2006.

(g)	The claimant asserted that the claim was posted in time and that the claimant’s solicitor was entitled to expect that the claim would arrive at OITFET by close of business on 19 September 2006 and that the cause of the delay lay with Royal Mail and not the claimant or his solicitor.

Accordingly it was not reasonably practicable for the claimant to lodge the claim in time and it was lodged within a further reasonable period and time should be extended to enable this claim to continue.

(h)	The claimant is not relying on the Dispute Resolution procedures to extend the time for making a claim.

The Law

5.	(a)	A Tribunal cannot consider a complaint of unfair dismissal unless it is brought within three months of the effective date of termination (Article 145(2)(a) - The Employment Rights (Northern Ireland) Order 1996.

(b)	Where a complaint is out of time the Tribunal may consider the complaint where it is satisfied that it was not reasonably practicable to present the complaint within the three months and where the complaint was brought within a further reasonable period (Article 145(2)(b) The Employment Rights (Northern Ireland) Order 1996).

(c)	Where a complaint of unfair dismissal is made after the three month period and at that time the complainant has reasonable grounds for believing that the applicable statutory dismissal procedure was being followed in respect of matters that consisted of or included the substance of the complaint the three month period for lodging a claim is extended for a period of three months (Regulation 15(1)(a) and (2) Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

(d)	Where a claim is presented by post, presentation will be assumed to have been effected, unless the contrary is proved, at the time when the letter would be delivered in the ordinary course of post.  The ordinary course of post is an objective test.  (Consignia  v  Sealy (CA) [2002] ICR 1193 at paragraph 31)

Application of the Law and Findings of Fact to the Issues

6.	(a)	In this claim the effective date of termination from which the time limits run is the 19 June 2006.

(b)	The claimant’s claim was presented on 21 September 2006, two days outside the requisite three months for bringing a claim.

(c)	At the time of lodging the claim there was not any evidence before the Tribunal that a disciplinary procedure was being followed.  Therefore the claimant cannot avail of the extension of time for lodging a complaint by virtue of Regulation 15(I)(a) and (2) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. 

The claimant, in fact, specifically stated that he was not seeking to rely on the Dispute Resolution procedures for an extension of the time limit.

(d)	There was no evidence before the Tribunal as to whether the claim was posted by first class or second class mail.

In St Basil’s Centre Ltd  v  McCrossan [1992] ICR 140 EAT at 145C the EAT followed the Queen’s Bench Masters Practice Direction No 41 set out in the Supreme Court Practice 1991 Vol 2 page 193 Order 65 Rule 5.  It stated that where information of the class of the mail is absent second class mail will be assumed to have been made.  Rule 5 stated that second class mail should in the ordinary course of post be taken to have been delivered on the fourth working day (Monday to Friday, excluding any Bank Holiday) after posting.

In Consignia  v  Sealy Hart J questioned the relevance of the Queen’s Bench Practice Direction of 1985 because it was no longer operative in 2002 and at best showed what was the ordinary course of post in 1985.

Brooke LJ set out guidance for industrial tribunals (page 1204 paragraph 31).  He stated that where a letter is sent by first class post it is now legitimate to accept the approach contained in CPR r6.7 and conclude that in the ordinary course of post it will be delivered on the second day after it was posted (excluding Sundays, bank holidays, Christmas Day and Good Friday, being days when post is not normally delivered).

No guidance is given by Brooke LJ as to any assumptions about second class post.

(e)	The Tribunal is not persuaded that it was not reasonably practicable for him to lodge a complaint within the requisite three months.  In so concluding the Tribunal took into account the following matters;-

(i)	There was not any evidence that the claimant’s claim had been posted by first class post and thus the claimant was unable to benefit from the guidance offered by Brooke LJ in Consignia  v  Sealy at page 1204 paragraph 31 (3) to (5) ie that it should have arrived by 16 September 2006 and where it arrived after that date a tribunal could conclude that it was not reasonably practicable for the complaint to be presented within the prescribed time.

(ii)	That because the class of the post used is unknown it seems appropriate to the Tribunal that it assumes that it was by second class post.

(iii)	That the claimant must establish on the balance of probabilities when the letter would be delivered in the ordinary course of post.
 
(iv)	There was not any evidence before the Tribunal as to when the letter would have been delivered in the ordinary course of post.

(v)	The claimant has not advanced any other explanation for the lateness of the presentation of his claim.

(f)	Accordingly the claimant’s claim for unfair dismissal was not brought within the specified time limit and therefore the preliminary issue is answered in the negative.
 
(g)	The claimant’s claim for unfair dismissal is dismissed as the Tribunal does not have jurisdiction to entertain the claim.

Chairman:

Date and place of hearing: 12 January 2007, Belfast

Date decision recorded and issued to parties: