THE INDUSTRIAL TRIBUNALS

CASE REF:	2316/14  

CLAIMANT:			Vytautas Afanasjevas

RESPONDENT:		Encirc Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant’s claim of unfair dismissal is out of time and that it was reasonably practicable for him to have presented his unfair dismissal claim within time.  The tribunal is however satisfied, although the claimant’s claim of discrimination on racial grounds is out of time, that in all the circumstances of the case it is just and equitable to extend time to consider this claim.  The unfair dismissal claim only is dismissed.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Crothers

Appearances:

The claimant was represented by Mr R Ferguson of Fergusons Solicitors, and was assisted by an interpreter, Egidijus Sipavicious.

The respondent was represented by Mr M McNally, Solicitor of Hill Dickinson Solicitors.

The Claim

1.	The claimant claimed that he had been unfairly dismissed by the respondent and that he had been subjected to unlawful discrimination and victimisation on racial grounds.

Issues before the Tribunal

2.	The issues before the tribunal were as follows:-

(1)	Did the claimant bring his claim of unfair dismissal within three months of the effective date of termination?  If not, was it not reasonably practicable for the claimant to bring his claim within the three month time limit?  If so, did he bring his claim within such further period as the tribunal considers reasonable?

(2)	Did the claimant bring his claim of race discrimination within three months of the alleged discrimination on 13 June 2014?  If not, in all of the circumstances of the case is it just and equitable for the tribunal to consider the claimant’s complaint?

Agreed Facts

3.	At a previous Case Management Discussion the following facts were agreed:-

	(i)	The respondent is engaged in the manufacturing, filling, warehousing, and logistics of glass containers.

	(ii)	The respondent operates from two sites at Elton, England and Derrylin, Northern Ireland.  With effect from 12 May 2014 the respondent changed its name from Quinn Glass Limited to Encirc Limited.

	(iii)	The claimant commenced employment with the respondent on 
20 November 2006.  The claimant was employed by the respondent as an IS Operator at its Derrylin site.

	(iv)	The parties agree that the claimant’s first language is not English.

	(v)	In the summer of 2013 the claimant made a number of allegations against his colleague, Keith Johnston and others.  One of these allegations was that Mr Johnston and others had made comments to the claimant relating to his nationality.  The respondent investigated the allegations and informed the claimant in a letter dated 25 September 2013 that it could find no evidence to support the claimant’s allegations.  The respondent therefore dismissed the claimant’s grievance.  The claimant did initially appeal this decision on 
27 September 2013 but subsequently withdrew his appeal.

	(vi)	An incident took place between the claimant and Mr Johnston on 13 June 2014.  The claimant accepts that he used inappropriate language towards Mr Johnston in that he swore at Mr Johnston but denies that he did so in a threatening manner.  Mr Johnston alleged that the claimant swore at him and [subjected] him to threatening and abusive behaviour.

	(vii)	The claimant alleges that the allegation against him in relation to the incident on 13 June 2014 amounted to race discrimination.  The claimant has stated in his claim that he was subject to race discrimination on this date.  The respondent denies this.

	(viii)	The claimant was invited to a disciplinary meeting in a letter dated 18 June 2014 and the meeting was held on 20 June 2014.  The disciplinary meeting was chaired by Kevin McGarry (Production Manager) on behalf of the respondent.  The allegation against the claimant was that he used abusive/threatening language towards a colleague on the production floor.

	(ix)	The respondent dismissed the claimant by reason of gross misconduct with effect from 20 June 2014.  The decision was confirmed to the claimant in a letter of the same date.

	(x)	The claimant appealed his dismissal in a letter dated 25 June 2014.

	(xi)	An appeal meeting was held on 3 July 2014.  The meeting was chaired by Fiacre O’Donnell (Marketing Manager).  The respondent adjourned the meeting to carry out further investigations and the meeting was re-convened on 23 July 2014.  The claimant failed to attend the meeting on 23 July and it was re-arranged for 31 July 2014.  

	(xii)	The respondent dismissed the claimant’s appeal and upheld the decision to terminate his employment.  The appeal outcome letter was dated 7 August 2014.  

	(xiii)	The claimant presented his claim to the tribunal on 3 October 2014.

Sources of Evidence

4.	The tribunal heard evidence from the claimant and was referred to documentation in the course of the hearing.

Findings of Fact

5.	Having considered the evidence insofar as same related to the issues before it, the tribunal made the following additional findings of fact, on the balance of probabilities:-

(i)	The three month period for the presentation of the race discrimination claim ended on 13 September 2014.  The time period in relation to the unfair dismissal claim ended on 20 September 2014.  The claimant was aware of the three month time limit at the date of his dismissal on 20 June 2014.  It is also evident that he was able to consult with various trade union representatives in his work environment by telephone but, due to the lack of apparent progress in advancing his case, he attended Unite’s Head Office in Belfast.  On 23 September 2014 he received a letter from the Regional Coordinating Officer, Eugene McGlone, in the following terms:-

“Dear Mr Afanasjevas

I refer to your recent request for legal representation from the Union in respect of unfair dismissal of 13 July 2014 and race discrimination of 5 July, 31 July and 23 September.  It appears from our records that due to your non-compliance you are not entitled to legal representation from the Union in this matter.

I have enclosed your paperwork and would remind you that should you still wish to pursue the matter using a private solicitor any action must be taken within three months of the date when the act complained of occurred, this means that if you are to lodge proceedings you must do so no later than 12 October 2014 in respect of unfair dismissal; and no later than the 4 October 2014 for race discrimination.

If you need further assistance the Labour Relations Agency will be able to provide you with advice, their phone number is 02890 321442.

Yours sincerely

Eugene McGlone
Regional Coordinating Officer”

	The tribunal had no evidence before it as to the precise information received by Unite from the claimant.  The dates for the presentation of proceedings of 12 October 2014 in respect of an unfair dismissal claim and 4 October 2014 of the race discrimination claim are incorrect.  The claimant had attended the Head Office in Belfast about 1½ to 2 months after his dismissal.  Following receipt of the correspondence of 23 September 2014 from Unite, the claimant maintained contact with Damien McDermott, a union representative in his previous work environment and stated in his evidence that he knew that time was running out to present a claim to the tribunal.  However, in fact, the time periods has already been reached by this stage. Towards the end of September he attended a Solicitors Office in Cavan and was advised to retain the services of a solicitor in Northern Ireland.  He consulted with Mr Ferguson on 2 October 2014 and his claim was presented to the tribunal on the following day.

(ii)	The claimant also appealed his dismissal.  His union representative, Avril Harte, attended as his representative at the disciplinary hearing.  Brian Monaghan, Unite officer was present as his chosen representative at the subsequent appeal hearing held, ultimately, on 31 July 2014.  The appeal hearing upheld the respondent’s decision to dismiss the claimant for gross misconduct.

(iii)	The claimant made the case that he expected the union to act on his behalf and refer his case to the union solicitors.  His case, in terms, was that the union had let him down.  At the same time, it was evident that the claimant had an awareness of a three month time limitation period at the date of his dismissal and he does not appear to have exercised himself in seeking assistance from other sources in order to present a claim to the tribunal before the expiration of the relevant time period.

The Law

6.	(1)	The law in relation to the period for presenting a tribunal claim for unfair dismissal is set out in Article 145 of The Employment Rights (Northern Ireland) Order 1996.  The tribunal considered the leading case of Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119.  In this case it was held that the words “reasonably practicable” lie 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 a complaint to the Employment Tribunal within the relevant three months?”  The case of Riley v 1. Tesco Stores Ltd and 2. Greater London Citizens Advice Bureau Services Ltd [1980] IRLR 103 CA, held that a third party, skilled or otherwise, only comes to be considered a possible excuse for the employee’s delay if he gives advice or is authorised to act in time and he fails to act or advice acting in time.  Where an employee who presents his complaint of unfair dismissal out of time alleges ignorance of his right or of how and when he should pursue it, or is under some mistaken belief about these matters, an Industrial Tribunal must look at the circumstances of his ignorance or belief and any explanation that he can give for them, including any advice he took, and then ask itself whether the ignorance or mistake is reasonable on his or his advisers part, or whether it was his or his adviser’s fault.  If either was at fault or unreasonable, it was reasonably practicable to present the complaint in time.  When considering the effect of going to an adviser, the employee cannot necessarily prove that it was not reasonably practicable by saying that he took advice.  The respondent’s representative also referred the tribunal to the case of Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 CA.  In that case, it was held that in deciding whether it was practicable for a complaint of unfair dismissal to be presented within the stipulated time period, the industrial tribunal should enquire into the circumstances and ask itself whether the claimant or his advisers were at fault in allowing the time period to pass by without presenting the complaint.  If either were at fault, then it could not be said to have been impracticable for a complaint to have been presented in time.  

(ii)	Article 65 of the Race Relations (Northern Ireland) Order 1997 addresses the period within which proceedings are to be brought to the tribunal.  Mr Ferguson referred the tribunal to relevant sections in the judgements in the cases of Mills and the Crown Prosecutions Services v Marshall [1998] [UKEAT 528 97 1102], Virdi v Commissioner of Police of the Metropolis and Central Police Training and Development Authority (Centrex), [UKEAT 4373-06-1810], and Robinson v Dr Bowskill and six others practising as Fairhill Medial Practice [UKEAT/0313/12/JOJ].  In the case of Robinson his Honour Jeffrey Burke QC states at paragraph 49 of his judgement:-

	“It is clear from Virdi and authorities before and since Virdi that where the case of a claimant who seeks an extension of time is that he or she put the claim into the hands of a solicitor or experienced representative, the claimant is putting forward an explanation which is capable of being a satisfactory explanation for delay in the presentation of the claim”

Submissions

7.	The tribunal considered the written submissions presented to him by the claimant’s representative together with the oral submissions from both representatives at the end of the hearing.  

Conclusions

8.	(i)	Having applied the relevant principles of law to the agreed facts and the facts as found, the tribunal concludes that it was reasonably practicable for the claimant to present his unfair dismissal claim to the tribunal before the expiration of the three month period.  His awareness of such a period at the date of his dismissal is significant.  The fact that there may have been some fault on behalf of his advisers is not a good reason for extending time.  Furthermore the tribunal is satisfied that the claimant himself was to some extent at fault in not taking reasonable and proper steps to inform himself regarding the precise time for the presentation of an unfair dismissal claim to the tribunal.  

	(ii)	The test for an extension of time is wider than the reasonable practicability test in relation to unfair dismissal.  Also, in that context, any fault on behalf of the advisers whether professional or otherwise does not attach to the claimant in the same way as in an unfair dismissal claim.  

	(iii)	Harvey on Industrial Relations and Employment Law states at Division T279, as follows:-

			“The discretion to grant an extension of time under the just and equitable formula has been held to be as wide as that given to the civil courts by s 33 of the Limitation Act 1980 to determine whether to extend time in personal injury actions (British Coal Corpn  v  Keeble, DPP  v  Marshall, above).  Under that section the court is required to consider the prejudice which each party would suffer as a result of granting or refusing an extension, and to have regard to all the other circumstances, in particular: (a) the length of and reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had co-operated with any requests for information; (d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and (e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action (see British Coal Corpn  v  Keeble [1997] IRLR 336, at para 8).  However, although, in the context of the ‘just and equitable’ formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, ‘provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion’ (Southwark London Borough  v  Afolabi [2003] EWCA Civ 15, [2003] IRLR 220 at para 33, per Peter Gibson LJ).

			When considering whether to grant an extension of time under the ‘just and equitable’ principles, the fault of the claimant is a relevant factor to be taken into account, as it is under s 33 of the Limitation Act (Virdi  v  Comr of Police of the Metropolis [2007] IRLR 24, EAT).  But if it is the claimant’s solicitors who are at fault in presenting the claim, then such fault cannot be laid at the door of the claimant; accordingly, if the solicitors are negligent, the mere fact that the claimant may have a potential claim against them will not justify the refusal of an extension of time (Virdi, apply the principles set out in Steeds  v  Peverel Management Services Ltd [2001] EWCA Civ 419, [2001] All ER (D) 370 (Mar), in relation to an extension under s 33).”

(iv)	The tribunal is satisfied that in relation to the racial discrimination claim, it would be just and equitable to extend time to consider the claimant’s claim, in all the circumstances.

(v)	The claimant’s claim of unfair dismissal is therefore dismissed.

Employment Judge:       

Date and place of hearing:	20 February 2015, Belfast.	

Date decision recorded in register and issued to parties: