Mooney,Cafolla vs Andras House Ltd
| Jurisdiction | Northern Ireland |
| Judgment Date | 18 January 2008 |
| Docket Number | 00187/05FET |
| Court | Fair Employment Tribunal (NI) |
| Respondent | Andras House Ltd |
THE FAIR EMPLOYMENT TRIBUNAL
CASE REF: 187/05FET
1405/05
210/05FET
1422/05
CLAIMANTS: Stephen Mooney & Riccardo Cafolla
RESPONDENT: Andras House Ltd
DECISION
The unanimous decision of the Tribunal is that the claimants were subjected to unlawful discrimination contrary to Articles 3 and 19 of the Fair Employment and Treatment (Northern Ireland) Order 1998. The tribunal awards compensation to Mr Mooney in the sum of £11599.85 and compensation to Mr Cafolla in the sum of £16110.91
Constitution of Tribunal:
Chairman: Ms J Knight
Panel Members: Mr M Gallagher
Mr W Holland
Appearances:
The claimants were represented by Mr K Denvir Barrister-at- Law instructed by Campbell Stafford Solicitors.
The respondent was represented by Mr P Moore of Peninsula Business Services Limited.
A. Issues
The claimants both lodged complaints claiming they had been unfairly dismissed, for unpaid wages and notice pay and that they had been subjected to unlawful discrimination contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998, following their dismissal for gross misconduct by the respondent.
By an order dated 22 August 2006, the Vice President ruled that the claimants’ claims should be heard and considered together.
Preliminary Issue
At the outset of the hearing the Tribunal was required to determine as a preliminary issue whether it had jurisdiction to consider the claimants’ claims of unfair dismissal and for notice pay. The tribunal heard submissions from the parties’ representatives and considered the legal authorities to which it was referred by the parties, including the cases of Bedford Unemployed Workers & Welfare Rights Centre v Khan EAT/726/96 23 July 1996 and Schulz v Esso Petroleum Co Ltd [1999] 3 All ER 338. The tribunal made a ruling, which was delivered orally to the parties on the 1 May 2007 and again on 22 August 2007. Mr Denvir expressly confirmed to the tribunal on 23 August 2007 that the claimants did not seek to challenge the decision of the tribunal on the preliminary issue. The decision is set out in full:
1) “Mr Mooney was summarily dismissed without notice pay on 22 June 2005. He lodged an appeal against this decision by letter dated 28 June 2005, which was heard on 7 July 2005. The original decision to dismiss was affirmed; therefore the effective date of termination of employment is 22 June 2005.
2) Mr Mooney lodged his originating complaint with the Office of Industrial Tribunals and the Fair Employment Tribunal on 14 October 2005 in which he made claims of unfair dismissal, for unpaid wages and political and religious discrimination contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998.
3) Mr Cafolla was summarily dismissed without notice pay on 22 June 2005. He lodged an appeal against this decision by letter dated 29 June 2005 which was heard on 7 July 2005. The original decision to dismiss was affirmed; therefore the effective date of termination of employment is 22 June 2005.
4) Mr Cafolla lodged his originating complaint with the Office of Industrial Tribunals and the Fair Employment Tribunal on 7 October 2005 in which he made claims of unfair dismissal, for unpaid wages and political and religious discrimination contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998.
5) Both claimants sought legal advice following notification of the appeal decision which was sent by letters to the claimants dated 22 July 2005.
6) At a Pre Hearing Review on the 1 September 2006, the Vice President of the Fair Employment Tribunal decided that the letters of appeal constituted a statutory grievance for the purpose of Article 20 of the Employment (Northern Ireland) Order 2003 for the reasons set out in that decision.
7) Mr Denvir confirmed that the claimants’ grievances contained in the letters of appeal related only to the complaints of religious and political discrimination and did not contain a reference to the issues of notice pay and unpaid wages.
8) It was accepted on behalf of the claimants that the originating claims had been lodged outside the prescribed 3 month time limits for lodging complaints of unfair dismissal and breach of contract contained in the Employment Rights (Northern Ireland) Order 1996 and the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994.
9) The reason advanced on behalf of the claimants for the late presentation of the claims was that the claimants believed that the 22 July 2005 was the effective date of dismissal and that time began to run against them as from that date.
10) On this basis it was argued that it was not reasonably practicable for the claimants to comply with the three month time limit. No other explanation was put forward as to why the claimants had not complied with the time limits.
11) It was only realised by the claimants after they had received legal advice in the Autumn of 2006 that the effective date of termination was in fact 22 June 2006.
12) In relation to the unfair dismissal claims, Article 145 of the Employment Rights (Northern Ireland) Order 1996 provides that a tribunal does not have jurisdiction to consider a complaint of unfair dismissal unless it is presented
(a) before the end of the period of three months beginning with the effective date termination; or
(b) within such further period as the tribunal considers reasonable where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that three month period.
13) A similar time limit is prescribed in respect of cases of breach of contract by the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994.
14) However, in breach of contract cases, there is a further requirement upon claimants to lodge a statutory grievance imposed by Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 which provides that a claimant may not present a complaint to a tribunal if the complaint is subject to the statutory grievance procedure and he has not put his grievance in writing and waited 28 days before lodging proceedings.
15) Therefore as the claimants accept that they did not comply with this requirement, the tribunal determines that it does not have jurisdiction to deal with the complaints of unpaid notice pay. These complaints are therefore dismissed.
16) In relation to the complaints of unfair dismissal, the tribunal is satisfied that there is no extension of time by reason of the statutory disciplinary procedures. This is because the claimants were aware that the disciplinary procedure had come to an end before the conclusion of the original three month time limit. [Regulation 15 of the Employment (Northern Ireland) Order 2003 Dispute Resolution Regulations (Northern Ireland) 2004.]
17) Therefore the issue for the tribunal is whether it should exercise its discretion under Article 145(2) (b) of the 1996 Order.
18) The fact that the claimants had lodged appeals under the internal disciplinary procedure does not, without more, stop time running against a claimant, or extend the period for lodging the complaint.
19) The onus is on the claimants to prove that it was not reasonably feasible to lodge the complaint within the three month time limit.
20) Apart from the claimants’ mistaken belief about the correct effective date of termination, no other reason was advanced as to why it was not reasonably feasible for the claimants to comply with the time limit.
21) Having carefully considered the authorities to which it was referred by the parties, the tribunal is satisfied that in the circumstances of this case, there is no evidence before it upon which it can exercise its discretion to extend the time limit.
22) In the Schulz case the claimant became unwell and unable to give instructions to his solicitors during the last six weeks of the limitation period. There is no suggestion in this case that either claimant was unable to give instructions to their solicitor due to illness or for any other reason.
23) The Khan case can be distinguished on the basis that in that case the claimant had lodged her claim within the three month time limit for...
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