THE INDUSTRIAL TRIBUNALS

CASE REF:	6472/17

CLAIMANT:			Pawel Keska

RESPONDENT:		Hannon Transport Limited

DECISION ON A PRE HEARING REVIEW
The decision of the tribunal is that the claimant’s claims are out-of-time and that time should not be extended.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Crothers	

Appearances:

The claimant represented himself, assisted by E Hamilton, interpreter.

The respondent was represented by Ms L Bryson, Solicitor, Eversheds Sutherland.

THE CLAIMS

1.	The claimant’s claims were registered under the headings of unlawful disability discrimination, unlawful deduction from wages, and in relation to rest breaks under the Working Time Regulations.  The claimant clarified before the tribunal that he was not making an unlawful disability discrimination claim.  Any such claim is therefore withdrawn and dismissed.  Furthermore there is neither an unfair dismissal, nor a failure to provide payslips claim before the tribunal.

THE ISSUE

2.	The issue before the tribunal was as follows:-

		“Whether one, or several, or all of the claimant’s claims are time-barred”.

SOURCES OF EVIDENCE

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

FINDINGS OF FACT

4.	(i)	Initially, the claimant agreed that the effective date of termination of his employment was 21 June 2017.  This is the date inserted by him in paragraph 5.2 of his claim to the tribunal, in paragraph 7.2, and in paragraph 7.4 which states as follows:-

		“What caused the contract to be terminated (and) on 21/06/2017 I left Hannon to my country for further kidney treatment.  After six weeks I went back to Ireland.  I took a job … in Armagh”.

The claimant’s claim, signed by him on 29 August 2017, was presented to the tribunal on 29 September 2017.

 	(ii)	During his evidence, the claimant claimed that he had informed Ryan Alexander of the respondent company on 5 June 2017 that he would be taking a three week holiday from 22 June 2017.  He claimed that he did not make up his mind not to return to work until a date in July 2017 and used this argument to contend that his effective date of termination was not as stated in his claim form but was at a later date.  There was no evidence of the claimant having been paid for three weeks’ leave and the tribunal was satisfied however on the evidence, that the effective date of termination of the claimant’s employment was 21 June 2017.

	(iii)	The claimant’s evidence was at times confusing, vague and contradictory.  However the tribunal was satisfied that he returned to Northern Ireland from Poland on 15 August 2017 when he commenced his new employment.  Although he previously referred to an earlier date (when he was in Poland), the tribunal is further satisfied that the claimant decided to obtain the relevant claim form from the tribunal office in or about the middle of August 2017.  He claimed that he visited the tribunal office on 29 August 2017 but was informed that the claim form, which was completed in Polish, was unacceptable and that it had to be translated into English.  The claimant claimed that at this point he was unaware of the three month time-limit for presentation of claims.  The tribunal was satisfied that he was aware of the three-month period prior to the presentation of his claim.  It appears to have been delayed not only by the need for translation but by the fact that he was outside the country in his new employment for a period of around two weeks.

	(iv)	The claimant claimed that he had texted Ryan Alexander on 6-10 July 2017 to inform him of his return to work.  The tribunal afforded the claimant time to produce evidence of such a text message, but this was not forthcoming.

	(v)	The tribunal is satisfied that the latest date for any claim under the Working Time Regulations pertaining to 17 June 2017 and that date for presenting such a claim is 17 September 2017.  The claimant, having previously stated to the tribunal that he was not making a claim for unlawful deduction of wages but rather a claim for failure to provide payslips, later changed his mind and claimed that there were certain deductions made by the respondent during the entire period of his employment up to 21 June 2017.  However he was unable to pinpoint precisely any such alleged deductions and when they occurred.

THE LAW

5.	(i)	Regulation 43(2) of the Working Time Regulations (Northern Ireland) 2016 provides that an Industrial Tribunal shall not consider a complaint under this Regulation unless it is presented before the end of the period of three months beginning with the date on which it is alleged that the exercise of their right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date in which it should have been permitted to begin); 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 complaint to be presented before the end of that period of three months.

	(ii)	Article 55(2) of the Employment Rights (Northern Ireland) 1996 Order provides that an Industrial Tribunal shall not consider a complaint under that Article unless it is presented to the tribunal before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made, or if there have been a series of deductions or payment before the end of the period of three months beginning with the date of the last payment received.

	(iii)	Article 55(4) provides that where the Industrial Tribunal was satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

	(iv)	For the purposes of his claims under the Working Time Regulations and for unlawful deduction of wages, the claimant must show that it was not reasonably practicable to present his claim in time.  The burden of proving this is on the claimant (Porter v Bandridge Ltd [1978] IRLR 271.)  Furthermore, should the claimant succeed in showing that it was not reasonably practicable to present his claim in time, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable.

	(v)	The tribunal considered Lord Dennings’ judgment in Walls Meat Company Limited v Khan [1978] IRLR 499 wherein he stated (repeating the test in the Dedman case):-

		“It is simply to ask this question:

		Had the man just cause or excuse for not presenting his complaint within the prescribed time?  Ignorance of his rights – or ignorance of the time-limit – it is not just cause or excuse unless it appears that he or his advisors could not reasonably be expected to have been aware of them.  If he or his advisors could reasonably have been so expected, it was his or their fault, and he must take the consequences”.

SUBMISSIONS

6.	Ms Bryson had forwarded a document, incorporating submissions to the tribunal which is annexed to this decision.  She also submitted that for the purposes of the Working Time Regulations claim, time commenced on 17 June 2017.  The claimant did not make any oral submissions.

CONCLUSIONS

7.	Having considered the evidence before it, together with relevant documentary evidence and the principles of law, the tribunal concluded as follows:-

	(i)	The tribunal is satisfied that the effective date of termination of the claimant’s employment was 21 June 2017.

	(ii)	The claimant has not discharged the onus placed upon him to show the tribunal that it was not reasonably practicable to present his claims relating to the Working Time Regulations or alleged unlawful deductions from wages in time, and therefore his claims before the tribunal are dismissed.

Employment Judge:

Date and place of hearing:	10 May 2018, Belfast.

Date decision recorded in register and issued to parties: