UD1169/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                             CASE NO.

Kenneth Nixon - Claimant                                                                             UD1169/2012

against

E & I Engineering Limited - Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms E. Daly B.L.

Members:     Mr. D. Morrison

                    Ms. A. Moore

heard this claim at Letterkenny on 21^st February 2014

Representation:

Claimant(s) :    Gerard Doyle, Connolly Doyle Solicitors, St. Oran’s Road, Buncrana,

Co. Donegal

Respondent(s) : Terry McNamara, IBEC, 3^rd Floor, Pier 1, Quay Street, Donegal Town,

                        Co. Donegal

The determination of the Tribunal was as follows:-

Preliminary Issue:

A preliminary issue was raised by the respondent’s representative in this matter. The claimant commenced employment on the 27^th September 2002 and was dismissed on the 19^th August 2011. The claimant submitted a claim under the Unfair Dismissals Acts, 1977 to 2007 to the Employment Appeals Tribunal on the 23^rd July 2012.

Respondent’s Position:

The respondent contends the claim is out of time as per Section 8 (2) of the Act and therefore the Tribunal has no jurisdiction to hear the claim. It further says that four letters were sent by its former solicitors and it is not credible that one of these letters, re change of address, was received and the remaining three seeking instructions were not.

Claimant’s Position:

The claimant’s representative contends that there were exceptional circumstances as to why there was a delay in lodging the claim form to the Employment Appeals Tribunal.

The claimant told the Tribunal that he had attended a solicitor in Northern Ireland for legal advice on the 20^th September 2011. This solicitor wrote to the respondent on his behalf on the 28^th September 2011 re his change of address. After this the claimant had no contact from his solicitor. He contacted him on the 3^rd May 2012 and was informed his claim for unfair dismissal was statute barred. The claimant denies that other letters were received from this solicitor. The claimant made a complaint regarding this solicitor to the Law Society in Northern Ireland regarding the matter in which he had not dealt with his business in any timely fashion. They investigated the matter but made no reprimand against this solicitor.

On the day of this hearing the claimant’s representative stated that it was due to this frustration of contract with this solicitor and his client that led to the late submission of the application form.

Preliminary Determination:

The Tribunal finds on the balance of probability that it is unlikely that the three letters allegedly sent by the claimant’s former solicitor were not sent but that the one dealing with a change of address was. It does not find the evidence tendered on behalf of the Claimant to be credible. For this reason the Tribunal finds there are no exceptional circumstances to extend the time limit to lodge a claim for unfair dismissal from six-month to twelve months and therefore have no jurisdiction to hear the substantive matter under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)